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(701)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

______________________________________________________________

DEREK KITCHEN, INDIVIDUALLY;

MOUDI SBEITY, INDIVIDUALLY;

KAREN ARCHER, INDIVIDUALLY; CASE NO. 2:13-CV-217

KATE CALL, INDIVIDUALLY;

LAURIE WOOD, INDIVIDUALLY; AND

KODY PARTRIDGE, INDIVIDUALLY,

PLAINTIFFS,

VS.

GARY R. HERBERT, IN HIS OFFICIAL

CAPACITY AS GOVERNOR OF UTAH; SALT LAKE CITY, UTAH

JOHN SWALLOW, IN HIS OFFICIAL AUGUST 27, 2013

CAPACITY AS ATTORNEY GENERAL OF

UTAH; AND SHERRIE SWENSEN, IN HER

OFFICIAL CAPACITY AS CLERK OF

SALT LAKE COUNTY,

DEFENDANTS.

______________________________________________________________

STATUS CONFERENCE

BEFORE THE HONORABLE ROBERT J. SHELBY

UNITED STATES DISTRICT COURT JUDGE

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Case 2:13-cv-00217-RJS Document 25 Filed 09/05/13 Page 1 of 52

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APPEARANCES:

FOR THE PLAINTIFFS:

MAGLEBY & GREENWOOD

BY: JAMES E. MAGLEBY, ESQ.

JENNIFER F. PARRISH, ESQ.

PEGGY A. TOMSIC, ESQ.

170 SOUTH MAIN STREET, SUITE 850

SALT LAKE CITY, UTAH 84101

(801) 359-9000

FOR DEFENDANTS HERBERT AND SWALLOW:

OFFICE OF THE UTAH ATTORNEY GENERAL

BY: PHILIP S. LOTT, ESQ.

STANFORD E. PURSER, ESQ.

160 EAST 300 SOUTH, SIXTH FLOOR

P.O. BOX 140856


(801) 366-0100

SALT LAKE COUNTY DISTRICT ATTORNEY

BY: RALPH E. CHAMNESS, ESQ.

DARCY M. GODDARD, ESQ.

2001 SOUTH STATE STREET, ROOM S3700


(385) 468-7700

COURT REPORTER:

RAYMOND P. FENLON

350 SOUTH MAIN STREET, #242

SALT LAKE CITY, UTAH 84101(801) 809-4634

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P-R-O-C-E-E-D-I-N-G-S

(1:51 P.M.)

THE COURT: GOOD AFTERNOON. WE'LL GO ON THE RECORD

IN CASE NUMBER 2:13-CV-217. THIS IS KITCHEN, ET AL. VERSUS

GARY HERBERT, ET AL. MY APOLOGIES TO ALL OF YOU TO KEEP YOU

WAITING FOR A FEW MOMENTS.

COUNSEL, I HAVE YOUR NAMES, BUT WHY DON'T YOU TAKE A

MOMENT AND ENTER YOUR APPEARANCES, IF YOU WOULD, PLEASE.

MR. MAGLEBY: YOUR HONOR, JIM MAGLEBY, PEGGY TOMSIC

AND JENNIFER PARRISH ON BEHALF OF THE PLAINTIFFS.

THE COURT: THANK YOU.

MR. LOTT: PHIL LOTT AND STAN PURSER ON BEHALF OF

THE STATE DEFENDANTS.


MS. GODDARD: AND DARCY GODDARD, SALT LAKE COUNTY,

ON BEHALF OF SALT LAKE COUNTY, SHERRIE SWENSEN.

MR. CHAMNESS: RALPH CHAMNESS ON BEHALF OF SALT LAKE

COUNTY (INAUDIBLE).

THE COURT: ON BEHALF OF SALT LAKE COUNTY --

MR. CHAMNESS: SHERRIE SWENSEN, THE CLERK.

THE COURT: RIGHT. THANK YOU VERY MUCH. ALL RIGHT.

WELCOME ALL OF YOU. THANK YOU. THANKS FOR BEING HERE. AND

THANK YOU ALSO FOR YOUR SUBMISSIONS. IT WAS ACTUALLY QUITE

HELPFUL TO GET A SENSE FOR WHERE YOU ALL ARE AND WHERE YOU

THINK WE'RE HEADED BEFORE WE MET TODAY. THOUGH I WILL ADMIT

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THAT I WAS AT LEAST A LITTLE INTRIGUED, IF NOT PUZZLED, THAT

YOUR RESPECTIVE POSITIONS SEEMED TO BE OPPOSITE OF WHAT I

INITIALLY EXPECTED I MIGHT HEAR FROM ALL OF YOU.

WE HAVE UNDERTAKEN A GOOD BIT OF RESEARCH SINCE WE

RECEIVED YOUR SUBMISSIONS. AND AS YOU ALL KNOW, AT LEAST AS

WELL AS WE DO AND PROBABLY BETTER, WE'RE NOT ALONE ON THIS

TRAIL. THERE ARE A NUMBER OF COURTS IN DIFFERENT

JURISDICTIONS THROUGHOUT THE COUNTRY AT DIFFERENT STAGES ALL

RIDING HERD IN THE SAME DIRECTION TRYING TO RESOLVE I THINK

THIS QUESTION AND QUESTIONS PRESENTED BY THIS SUIT.

WE'VE SEEN IN OUR VIEW WHAT SEEMS TO BE A FAIRLY UNIFORM

PRACTICE BY COURTS IN TERMS OF MANAGING THESE PROCEEDINGS.

THE STATE POINTED US, OF COURSE, TO NEVADA AND HAWAII AS

EXAMPLES THAT THE STATE URGES US TO FOLLOW. WE FOUND EXAMPLES

IN OTHER JURISDICTIONS AS WELL. AND IT WAS INTERESTING TO SEE

THE PRACTICE SEEMS TO BE IN MOST OF THESE CASES THAT THE

COURTS, IN FACT AND THE PARTIES ARE URGING THIS IN MOST EVERY

CASE THAT WE SAW, SOME INITIAL MOTION PRACTICE TO RESOLVE AND

NARROW THE SCOPE OF THE LEGAL ISSUES THAT REMAIN TO BE

RESOLVED AND TO DO THAT AT THE -- NEAR THE OUTSET OF THE

LITIGATION IN LIEU OF FACT DISCOVERY AT THE OUTSET. IN FACT

THAT SEEMS TO BE THE CLEAR TREND AND ESPECIALLY AFTER THE

WINDSOR DECISION FROM THE SUPREME COURT.

AND AS I REVIEWED THE PLAINTIFFS' SUBMISSION IN ADVANCE

OF THIS HEARING AND BEGAN TO THINK ABOUT WHAT THEY WERE

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ASKING -- WHAT THE PLAINTIFFS WERE SEEKING BY WAY OF

DISCOVERY, I BECAME MORE AND MORE CONVINCED IN ADVANCE OF OUR

HEARING TODAY OF A PATH THAT I THINK MAKES SENSE AND WHAT I'LL

PROPOSE, AND THEN OF COURSE WE'LL HEAR FROM ALL OF YOU.

BUT I'LL JUST NOTE THAT THE DISCOVERY THAT THE PLAINTIFFS

IDENTIFY IN THEIR SUBMISSION I THINK FOCUSES LARGELY ON A

NUMBER OF LEGAL ISSUES, INCLUDING FOR EXAMPLE THE LEVEL OF

SCRUTINY THAT WILL APPLY TO OUR REVIEW, WHETHER ANY OF THESE

PLAINTIFFS ARE MEMBERS OF A PROTECTED CLASS AND THE LIKE.

THOSE ARE LEGAL QUESTIONS THAT WILL BE ADDRESSED AND ARGUED OF

COURSE UNDER EXISTING PRECEDENT FROM THE TENTH CIRCUIT AND THE

SUPREME COURT.

TO THE EXTENT THAT THERE ARE REMAINING FACTUAL QUESTIONS,

AND THERE ARE A NUMBER OF ISSUES WHERE THERE ARE FACTUAL

QUESTIONS, INCLUDING WHETHER MARRIAGE HAS HAD A STABLE

DEFINITION ACROSS GENERATIONS, WHETHER ONLY OPPOSITE SEX

MARRIAGE CAN FURTHER INTERESTS IN PROCREATION AND THE LIKE,

THOSE ARE FACTS THAT ARE IN MY VIEW NOT NECESSARILY IN THE

POSSESSION OF THE STATE OF UTAH OR THE DEFENDANTS. I THINK

THAT IT SEEMS TO ME AT LEAST AT THE OUTSET THAT THE PLAINTIFFS

ARE LIKELY TO MAKE FEW, IF ANY, OF THEIR ARGUMENTS BASED ON

DEPOSITIONS OR INTERROGATORIES OR DISCOVERY RESPONSES THAT

THEY WOULD RECEIVE FROM THE DEFENDANTS.

IT SEEMS FAR MORE LIKELY TO ME THAT THIS COURSE WOULD

FOLLOW -- THIS CASE WOULD FOLLOW THE TRAJECTORY WE'VE SEEN IN

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SO MANY OTHERS WHERE THE PLAINTIFFS WOULD BE CITING TO

EVIDENCE PROVIDED BY SOCIOLOGISTS OR PSYCHOLOGISTS OR OTHER

EXPERTS, THINGS THAT I THINK ARE EXPERTS AND SUBJECTS THAT ARE

AVAILABLE TO THE PLAINTIFFS WHOLLY INDEPENDENT OF TRADITIONAL

DISCOVERY IN LITIGATION. AND I DON'T -- I DON'T SEE A NEED,

AT LEAST AT THE OUTSET, FOR DISCOVERY FROM THE DEFENDANTS ON

THOSE SUBJECTS.

MY VIEW IS THAT WE SHOULD CONSIDER A SCHEDULE FOR HEARING

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT OR JUST -- JUST THE

STATE'S MOTION FOR SUMMARY JUDGMENT, IF THE STATE INTENDS TO

FILE AN EARLY MOTION. AND I DON'T SEE THAT THE PLAINTIFFS

WOULD SUFFER ANY PREJUDICE FROM RESOLVING THOSE MOTIONS EARLY

BECAUSE THOSE MOTIONS I THINK WILL DEFINE THE AREAS AND ISSUES

OF DISPUTE BETWEEN THE PARTIES AND WILL ASSIST US IN

IDENTIFYING WHAT FACTUAL AREAS, IF ANY, EXIST WHERE THERE IS

IN FACT A NEED FOR DISCOVERY FROM THE DEFENDANTS. AND THE

RESOLUTION OF THOSE MOTIONS WILL I THINK NARROW -- IT WILL

EITHER RESOLVE THE CASE OR NARROW THE ISSUES ON WHICH WE NEED

TO CONDUCT FACT DISCOVERY.

SO ON THE WHOLE, ON BALANCE, I THINK I'M QUITE INCLINED

TO FOLLOW THE OTHER JURISDICTIONS THAT ARE PROCEEDING ALONG

THIS PATH IN THIS CASE AND THEN GO FROM THERE. LET ME SAY

BEFORE I HEAR FROM THE PARTIES THAT IN NO WAY MEANS TO SUGGEST

THAT I'VE REACHED ANY SORT OF CONCLUSION ABOUT THE OUTCOME OF

THE ISSUES ON THE MERITS OR WHETHER THERE WILL BE A NEED FOR

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FACT DISCOVERY IN THIS CASE OR NOT FROM THE DEFENDANTS.

AND LET ME SAY THIS. THIS CASE WAS FILED IN MARCH, AND

I'M CERTAIN FROM THE PLAINTIFFS' PERSPECTIVE IT'S AN ISSUE

THAT THEY'VE BEEN WAITING TO HAVE THEIR DAY IN COURT ON FOR

YEARS. AND SO IF WE DO PROCEED IN THE MANNER THAT I'VE JUST

SUGGESTED, WE'LL DO SO EXPEDITIOUSLY SO THAT WE CAN GET THESE

ISSUES RESOLVED, GET THE MOTIONS RESOLVED. AND IN THE EVENT

WE ARE GOING TO HAVE DISCOVERY AND MOVE FORWARD TOWARDS A

TRIAL, WE CAN DO THAT ON A TIMELY BASIS.

AND WHEN I SAY EXPEDITIOUSLY, I DON'T EXACTLY MEAN WHAT

SOME OF THE OTHER COURTS HAVE DONE. I THINK IN THE HAWAII

COURT THE JUDGE THERE IMPOSED A TWO MONTH PERIOD FOR BRIEFING

SUMMARY JUDGMENT AND GETTING IN AND HAVING A HEARING. I DON'T

HAVE ANYTHING QUITE THAT CRAZY IN MIND, BUT I THINK WE SHOULD

MOVE BRISKLY.

SO THOSE ARE MY THOUGHTS. MR. MAGLEBY, THOSE THOUGHTS

LARGELY RUN COUNTER TO WHAT YOU'RE PROPOSING, SO LET ME INVITE

YOU TO ADDRESS THOSE IDEAS FIRST.

MR. MAGLEBY: THANK YOU, YOUR HONOR. SO LET ME SEE

WHERE I WANT TO START. I DON'T -- WE DON'T HAVE AN ISSUE WITH

THE STATE FILING A MOTION FOR SUMMARY JUDGMENT. IF THE STATE

WANTS TO FILE A MOTION FOR SUMMARY JUDGMENT, THEY CAN DO THAT.

IF THE STATE DETERMINES THAT IT WANTS TO FOREGO DISCOVERY

VIS-A-VIS OUR CLIENTS, IT CAN DO THAT. IF THE STATE IS SO

CONFIDENT THAT THE RATIONAL BASIS STANDARD OF REVIEW IS GOING

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TO APPLY FOR EXAMPLE ON THE EQUAL PROTECTION CLAIM AND IT DOES

NOT WANT TO SET FORTH ANY EXPERT TESTIMONY OR CONDUCT

DISCOVERY, IT CAN DO THAT.

HOWEVER, AS WE LOOK AT THESE ISSUES, WE ARE CERTAIN THAT

THERE ARE SOME ISSUES WHICH ARE GOING TO NEED TO BE RESOLVED

AS A MATTER OF FACT, AND THEY'RE GOING TO BE MATTERS FOR THE

COURT TO RESOLVE. AND WHAT WE DON'T WANT TO DO, AND THIS GOES

BACK TO WHAT YOU SAID ABOUT DOING THIS EXPEDITIOUSLY, DOING

THIS BRISKLY, IS HAVE A TWO TO THREE MONTH DELAY WHILE WE

BRIEF MOTIONS AND THE STATE AND THE COUNTY -- AND I THINK THE

COUNTY IS PROBABLY MORE ON THE SIDELINES SAYING, WELL, LOOK,

YOU DON'T GET TO DO ANY DISCOVERY.

IN RESPONSE TO THOSE MOTIONS, YOUR HONOR, THERE IS A GOOD

CHANCE, DEPENDING ON WHAT THE STATE SAYS, THAT WE MAY AGREE

THAT SOME OF THE ISSUES -- FOR EXAMPLE, IF THEY CONCEDE

CERTAIN THINGS, AS THEY HINT AT IN THEIR PAPERS BUT THEY DON'T

ACTUALLY COME RIGHT OUT AND SAY THAT THEY'RE GOING TO

STIPULATE OR AGREE TO CERTAIN OF THESE ISSUES, IF THEY

STIPULATE AND AGREE TO CERTAIN ISSUES, THEN OF COURSE WE COULD

FOREGO DISCOVERY ON THIS. BUT WHAT WE DON'T WANT TO DO IS

HAVE THIS DELAY.

AND SO WHAT WE'RE SAYING IS NOT, YOUR HONOR, THAT WE

SHOULDN'T DO BRIEFS WHENEVER THE STATE WANTS TO FILE THEM, AND

THEN WE'LL ASSESS WHETHER OR NOT, GIVEN WHAT THEY MAY OR MAY

NOT HAVE CONCEDED, FILE CROSS-MOTIONS. WHAT WE'RE SAYING IS

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THERE IS NO REASON TO DELAY DISCOVERY, AND WHAT WE OUGHT TO DO

IS TO PUT IN PLACE A SCHEDULE THAT ACCOMMODATES THE OUTCOME IF

THE STATE IS WRONG. BECAUSE, YOUR HONOR, I RECOGNIZE THAT

THEY'VE GOT THEIR POSITIONS, BUT WE'VE GOT OURS AS WELL. AND

WE HAVE CLIENTS, HUMAN BEINGS. THESE ARE VERY IMPORTANT

RIGHTS. AS YOU HAVE INDICATED, THEY'VE BEEN WAITING FOR A

LONG TIME TO HAVE THEIR DAY IN COURT. ONE OF OUR CLIENTS HAS

SOME HEALTH ISSUES WHICH DIRECTLY RELATE TO THE ISSUES IN THIS

CASE.

AND SO WHAT WE WOULD LIKE THE COURT TO DO IS SET A

SCHEDULE, AND THE STATE CAN FILE ITS BRIEF WHEN IT WANTS TO

FILE ITS BRIEF. I WOULD ACTUALLY PREFER IF THE STATE WOULD --

EXCUSE ME -- THE COURT WOULD MAKE THEM DO IT BY SAY OCTOBER

1ST, BUT I WASN'T GOING TO ASK FOR THAT TODAY. I WAS JUST

GOING TO SAY THEY CAN FILE THEIR BRIEF WHEN THEY FILE THEIR

BRIEF AND WE'RE ALLOWED TO DO DISCOVERY.

LET ME GIVE YOU SOME EXAMPLES OF SOME OF THE THINGS THAT

I THINK ARE NOT GOING TO BE A GIVEN IN THIS CASE, AND THEY

COME RIGHT OUT OF THE STATE'S BRIEF. THE STATE REFERS TO

QUOTE EXISTING AND READILY AVAILABLE HISTORICAL FACTS AS ONE

OF THE THINGS THAT THE COURT WILL LOOK AT.

MY QUESTION FOR THE STATE IS WILL YOU ACCEPT MY VIEW AND

MY CLIENTS' VIEW OF HISTORICAL FACTS OR ARE YOU GOING TO

DISAGREE WITH US? THE STATE SAYS THERE'S A SMALL NUMBER OF

MATERIAL ADJUDICATED FACTS WHICH ARE PROBABLY NOT DISPUTED.

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SO THEY'VE COME IN HERE AND ASKED THE COURT TO DENY MY CLIENTS

THE RIGHT TO MOVE THEIR CASE FORWARD BY HINTING THAT THEY

MIGHT STIPULATE TO CERTAIN FACTS BUT NOT TELLING US WHAT THEY

ARE.

THEY'VE SAID THAT A LEGISLATIVE FACT IS A QUESTION OF

SOCIAL FACTORS AND HAPPENINGS. AGAIN, WILL THE STATE AGREE TO

JIM MAGLEBY'S VIEW OF SOCIAL FACTORS AND HAPPENINGS OR THE

VIEW OF DEREK KITCHEN AND MY OTHER CLIENTS? I SUSPECT THEY

WILL NOT, AND I OUGHT NOT TO HAVE TO WAIT 90 DAYS TO FIGURE

THAT OUT.

LET ME GIVE ANOTHER EXAMPLE. LET'S TALK ABOUT DUE

PROCESS AND THE STRICT SCRUTINY ANALYSIS. PERHAPS WE CAN

RESOLVE ON MOTIONS WHETHER OR NOT SAME SEX MARRIAGE IS A

FUNDAMENTAL RIGHT. WHAT I DO KNOW IS THAT MARRIAGE IS A

FUNDAMENTAL RIGHT AND THE UNITED STATES SUPREME COURT HAS SAID

IT. I THINK THAT WILL BE EASILY RESOLVED IN OUR FAVOR. BUT

THEN THE STATE HAS TO COME FORWARD WITH A COMPELLING STATE

INTEREST. WHAT IS THAT STATE INTEREST? I THINK I'M ALLOWED

TO SERVE AN INTERROGATORY THAT SAYS TELL ME WHAT YOUR STATE

INTEREST IS SO THAT I KNOW WHAT IT IS FROM THE BEGINNING OF

THE CASE, AND IF AND WHEN I DEFEAT THE SUMMARY JUDGMENT MOTION

I KNOW WHETHER OR NOT I NEED TO DO DISCOVERY INTO THAT.

I'LL GIVE YOU AN EXAMPLE. ONE OF THE THINGS WE ALLEGED

IN OUR COMPLAINT IS THE VOTER PAMPHLET, THE BROCHURE THAT WAS

PASSED OUT WHEN AMENDMENT 3 WAS PROPOSED, HAD A LIST OF

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THINGS, AND ALBEIT IT WAS A BRIEF LIST, AND I WOULD SUGGEST TO

THE COURT A WHOLLY INADEQUATE LIST BUT A LIST NONETHELESS OF

THE REASONS WHY THE PROPONENTS OF THE AMENDMENT THOUGHT THAT

IT WAS A GOOD IDEA. THAT'S THE CLOSEST WE'VE COME TO SEEING

THE STATE ARTICULATE AN INTEREST. AND YOU KNOW WHAT THEY SAID

IN RESPONSE TO OUR COMPLAINT, THIS IS PARAGRAPH 29, THEY SAID

WE DISAGREE. THERE'S OTHER STUFF OUT THERE THAT MIGHT BE OUR

STATE COMPELLING STATE INTEREST.

THE OTHER THING I DON'T WANT TO HAVE HAPPEN IS THEY FILE

A SUMMARY JUDGMENT MOTION. THEY ADVANCE WHAT THEY SAY IS THE

STATE INTEREST. I DEFEAT THEM. THEY SUDDENLY COME UP WITH

SEVEN DIFFERENT NEW ONES. I SHOULD BE ABLE TO SERVE AN

INTERROGATORY THIS WEEK AND HAVE THEM ANSWER THAT SO THAT I

CAN WORK ON IT WHILE THEY WORK ON THEIR SUMMARY JUDGMENT

MOTION.

ANOTHER SET OF EXAMPLES UNDER THE EQUAL PROTECTION

HEIGHTENED SCRUTINY ANALYSIS, THERE'S FOUR FACTORS THE COURT

IS GOING TO ANALYZE: WHETHER THE GROUP THAT MY CLIENTS ARE A

PART OF HAVE SUFFERED A SIGNIFICANT HISTORY OF DISCRIMINATION;

WHETHER THE BASIS FOR THE DISCRIMINATION BEARS NO RELATION TO

THEIR ABILITY TO PERFORM OR CONTRIBUTE TO SOCIETY; WHETHER THE

BASIS FOR DISCRIMINATION IS BASED ON AN IMMUTABLE OR

DISTINGUISHING CHARACTERISTIC.

NOW, I WILL SAY THIS. IF THE STATE WILL CONCEDE THOSE,

THIS WILL GO A LOT FASTER. BUT, YOU KNOW, MY QUESTION TO

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MR. LOTT OR MR. PURSER WHEN THEY STAND UP HERE IS TELL ME ARE

YOU GOING TO CONCEDE THOSE THINGS? BECAUSE IF YOU'RE NOT

GOING TO CONCEDE THOSE THINGS, THEN THERE'S NO REASON THAT I

SHOULDN'T BE ALLOWED TO SERVE DISCOVERY TO FIND OUT WHAT THEY

ARE SO THAT I CAN GO DO WHAT YOUR HONOR HAS CORRECTLY FORECAST

AS WHAT IS LIKELY, WHICH IS THERE'S GOING TO BE SOME EXPERT

TESTIMONY ON THIS. AND I WOULD LIKE TO KNOW WHICH EXPERTS I

HAVE TO GET AND WHICH ONES I DON'T HAVE TO GET, WHETHER OR NOT

THE STATE IS GOING TO GET ITS OWN EXPERTS.

THE COURT: SO WHICH WAY DOES THAT CUT, MR. MAGLEBY?

THIS IS WHAT I'VE THOUGHT ABOUT. UNLIKE A TITLE VII CASE FOR

EXAMPLE THAT WE MIGHT SEE OR AN ERISA CASE OR A 1983 ACTION

WHERE WE HAVE DEFINED LEGAL PARAMETERS FOR OUR ANALYSIS THAT

ARE ESTABLISHED AND LONG RECOGNIZED, IT SEEMS TO ME WE HAVE

SOME QUESTIONS TO ANSWER IN THIS CASE BEFORE WE CAN BEGIN TO

ADDRESS WHAT DISCOVERY IS GOING TO BE RELEVANT. AND WHAT I'M

FEARFUL OF IS SENDING THE PARTIES OUT TO SEA TO GO CONDUCT

DISCOVERY AND BE COLUMBUS WHEN WE CAN DO SOMETHING FAR MORE

NARROW AND SURGICAL IF NECESSARY TO ADDRESS THOSE ISSUES THAT

REALLY ARE IN DISPUTE IN THIS CASE AND ONCE WE'VE DEFINED THE

RULES. AND SOME OF THOSE RULES ARE NOT DEFINED ANYWHERE YET.

SOME OF THEM ARE AND SOME OF THEM MAY BE FOR THE FIRST TIME BY

US OR OUR SISTER COURTS. DON'T WE WANT TO DEFINE THE RULES

THAT WE'RE GOING TO PLAY THIS GAME BY BEFORE WE START SENDING

EVERYBODY OUT TO START DISCOVERY IN THE WORLD?

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MR. MAGLEBY: I THINK WE ABSOLUTELY DO WANT TO

DEFINE THOSE RULES, YOUR HONOR, AND I THINK WE'RE ACTUALLY

TALKING ABOUT THE SAME THING.

THE COURT: MAYBE WE ARE, BUT WON'T THE

GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT TAKE US HALFWAY DOWN

THAT PATH, AND THEN WON'T YOUR RESPONSE TO THAT MOTION GET US

ABOUT THE REST OF THE WAY DOWN THAT PATH IN --

MR. MAGLEBY: NO.

THE COURT: -- DEFINING WHAT ISSUES ARE OUT THERE IN

DISPUTE, AND ON WHICH ISSUES DO WE NEED FACTUAL DISCOVERY, AND

FOR WHICH ISSUES ARE IN THE POSSESSION OF THE STATE?

MR. MAGLEBY: YES AND NO, YOUR HONOR.

THE COURT: OKAY.

MR. MAGLEBY: YOUR HONOR, AND I THINK WE'RE ON THE

SAME PAGE HERE. BELIEVE ME, I DON'T WANT TO SPEND EXTRA TIME

OR MONEY IN THIS CASE THAT I DON'T HAVE TO SPEND, AND MY

CLIENTS DON'T WANT TO SPEND THE HEARTACHE INVESTMENT THAT THEY

DON'T HAVE TO SPEND. I THINK IT'S IRONIC THAT ONE OF THE

REASONS THE STATE SAID WE OUGHT TO DO THIS SCHEDULE IS BECAUSE

THEY DON'T WANT TO WASTE TIME AND MONEY. I'M FIGHTING THE 800

POUND GORILLA. THEY'VE GOT ALL THE RESOURCES IN THE WORLD.

MINE ARE NOT SO UNLIMITED. SO LET ME ASSURE YOU MY GOAL IS

NOT TO MAKE THIS MORE COMPLICATED THAN IT NEEDS TO BE. BUT MY

THOUGHT IS DOING WHAT WE PROPOSE WILL ACTUALLY GET US THERE

QUICKER.

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SO LET ME EXPLAIN TO YOU WHY I THINK THAT WOULD BE THE

CASE. WE WOULD SERVE A LIMITED SET OF DISCOVERY, POINTED

QUESTIONS TO THE ISSUES THAT WILL ALSO BE ADDRESSED BY THE

SUMMARY JUDGMENT, BUT THEY WILL SAY FOR EXAMPLE TELL US ALL

THE BASES FOR THE COMPELLING STATE INTEREST.

THE COURT: WELL, DO THEY HAVE TO DO THAT?

MR. MAGLEBY: I THINK THEY DO.

THE COURT: I'M UNCERTAIN ABOUT THAT AS WE SIT HERE

TODAY. I THINK THIS IS ONE OF THE LEGAL QUESTIONS THAT WE

NEED TO RESOLVE FOR EXAMPLE AT THE OUTSET. WHAT LEVEL OF

SCRUTINY ARE WE GOING TO APPLY IN THIS CASE? THAT IS GOING TO

BE A STRICTLY LEGAL QUESTION THAT WE'RE GOING TO RESOLVE. DO

YOU AGREE?

MR. MAGLEBY: MAYBE. I THINK THE ANSWER IS MAYBE.

FOR EXAMPLE, A HEIGHTENED LEVEL OF SCRUTINY UNDER THE EQUAL

PROTECTION ANALYSIS HAS FOUR SUBCOMPONENTS TO IT THAT I TALKED

ABOUT A MINUTE AGO. I DON'T THINK THAT'S A LEGAL ANALYSIS,

UNLESS THE STATE IS WILLING TO CONCEDE THAT MY CLIENTS FALL

INTO A GROUP THAT CALLS FOR HEIGHTENED SCRUTINY. NOW, IF THEY

WILL CONCEDE THAT, THEN WE CAN GO ON AND ARGUE ABOUT WHETHER

THERE'S A COMPELLING GOVERNMENTAL INTEREST, ETCETERA.

WHAT I'M SUGGESTING IS IF WE SERVE LIMITED DISCOVERY

SAYING TELL US WHAT THINGS YOU CONCEDE AND WHAT THINGS YOU

DON'T CONCEDE, AND TELL US THE BASES UPON WHICH YOU ARE GOING

TO SAY THERE'S A COMPELLING GOVERNMENT INTEREST --

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THE COURT: CONTENTION INTERROGATORIES?

MR. MAGLEBY: YEAH, CONTENTION INTERROGATORIES.

THE COURT: AND WHAT HAPPENS WHEN WE GET THE

RESPONSE BACK POINTING US TO THE ESTABLISHED CASE LAW THAT

CONTENTION INTERROGATORIES ARE GREAT BUT A PARTY IS ENTITLED

TO ALLOW THE LITIGATION TO RUN ITS COURSE A GOOD BIT BEFORE

THEY HAVE TO COMMIT TO LEGAL POSITIONS?

MR. MAGLEBY: THAT WOULD BE AN EFFECTIVE ARGUMENT.

IT'S ONE I'VE MADE IN CIVIL CASES, BUT THE STATE HAS COME

BEFORE YOU, YOUR HONOR, AND SAID THEY DON'T NEED ANY OF THAT.

THE COURT: RIGHT.

MR. MAGLEBY: BECAUSE IT'S GOING TO BE LEGAL

ARGUMENTS. AND IF THE RESPONSE IS HERE ARE THE FIVE CASES AND

HERE ARE THE FIVE BASES, THEN I KNOW WHAT THEY ARE AND THEY'RE

NOT GOING TO CHANGE. BUT WHAT I DON'T WANT TO HAVE HAPPEN IS

THEY FILE THEIR SUMMARY JUDGMENT. I COME BACK. I DEFEAT IT.

AND THEN THEY SUDDENLY SAY HERE ARE MORE ARGUMENTS.

SO IF THE COURT WERE INCLINED FOR EXAMPLE TO RESTRICT OUR

DISCOVERY, AND I IN WAY THINK THE COURT SHOULD DO THAT, THEN

THEIR SUMMARY JUDGMENT HAS GOT TO HAVE EVERYTHING IN IT SO

THAT I'M NOT SANDBAGGED AND I'M NOT SUFFERING FROM DELAY WHEN

WE COME BACK AND I WIN THE SUMMARY JUDGMENT AND THEN THEY GO,

AH, YOU KNOW WHAT, I JUST THOUGHT OF SOMETHING NEW. HERE IS

MY NEW SUMMARY JUDGMENT. AND YOU STILL DON'T GET TO DO

DISCOVERY.

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YOUR HONOR, IF I WAS IN ANY OTHER CASE, ANY OTHER CIVIL

CASE, AND THE OTHER SIDE CAME IN AND SAID I WANT TO STAY

DISCOVERY BASED ON A SUMMARY JUDGMENT MOTION, THE FIRST THING

THEY'D HAVE TO DO IS FILE IT. THEY HAVEN'T EVEN FILED THAT

MOTION OR A MOTION TO STAY DISCOVERY. THEY ARE TWO MOTIONS

BEHIND WHAT THEY WOULD HAVE TO DO IN ANOTHER CASE, AND I DON'T

THINK THE STATE OUGHT TO GET --

THE COURT: WELL, I MEAN THE REASON WE'RE HERE TODAY

IS FOR THIS REASON. WE'RE GOING TO TRY TO CUT THROUGH SOME OF

THE RED TAPE THAT WE OFTEN HAVE IN THESE CASES, ESPECIALLY IN

THIS COURT WHERE PEOPLE ARE FILING MOTIONS, AND THEN THEY'RE

FULLY BRIEFED, AND THEN WE SET A HEARING DATE OUT, AND WE --

WE'RE GOING TO TRY TO CHART A COURSE TODAY SO WE CAN DO THIS,

AS I SAID, EXPEDITIOUSLY.

MR. MAGLEBY: AND WE WELCOME THAT, YOUR HONOR. WHAT

I'M SUGGESTING IS THE MINOR ADDITIONAL BURDEN, AND I THINK

THAT'S A GENEROUS WORD, FOR THE STATE TO PUT ON DISCOVERY,

BECAUSE IT'S REALLY A RIGHT THAT WE HAVE, BUT WHATEVER BURDEN

THAT IS OF THEM HAVING TO TELL US WHAT THEY'RE GOING TO

CONTEST AND WHAT THEY'RE GOING TO STIPULATE TO, AND TELL US

WHAT ARGUMENTS THEY'RE GOING TO ADVANCE FOR EXAMPLE IN THE

COMPELLING STATE INTERESTS ON THE FOUR ELEMENTS FOR HEIGHTENED

SCRUTINY, IT'S GOING TO BE TIME WELL SERVED.

THE COURT: I THINK YOU KEEP JUMPING PAST THE

PRELIMINARY QUESTIONS. LET ME TRY TO GET MY ARMS AROUND WHAT

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YOU'RE SAYING SO I MAKE SURE I'M NOT JUST DISCOUNTING

SOMETHING THAT YOU'RE SAYING. BUT I'M NOT -- I'M NOT TO

HEIGHTENED SCRUTINY YET. THAT MAY APPLY IN THIS CASE AND IT

MIGHT NOT. BUT I'D LIKE TO KNOW THE ANSWER TO THAT QUESTION

BEFORE WE START SENDING DISCOVERY AROUND IDENTIFYING ALL THE

FACTS THAT -- YOU KNOW, CONTENTION INTERROGATORY, IDENTIFY ALL

THE FACTS IN YOUR POSSESSION THAT YOU THINK PROVE THIS POINT

AND THIS POINT AND THIS POINT. DON'T I NEED TO KNOW THAT

THAT'S A RELEVANT INQUIRY BEFORE -- I DON'T NEED TO. WE DO

THIS OFTENTIMES IN CIVIL LITIGATION.

MR. MAGLEBY: SURE.

THE COURT: BUT THEN IT JUST SEEMS TO ME WE'RE

ALLOWING OURSELVES TO GET ON A CIRCUITOUS PATH THAT WE SEE IN

SO MANY CIVIL CASES HERE IN THIS COURT WHERE WE'RE AT TRIAL

THREE YEARS FROM NOW.

MR. MAGLEBY: OH, WE'RE NOT GOING TO -- NO. WE DO

NOT WANT A TRIAL IN THREE YEARS. WE WANT A TRIAL IN MAY

ACTUALLY. WE PUSHED THE DATE OUT BECAUSE WE THOUGHT OUR

WORTHY OPPONENTS WOULD WANT MORE TIME.

BUT LET ME GIVE YOU ANOTHER EXAMPLE, YOUR HONOR. THEY

FILE THEIR SUMMARY JUDGMENT MOTION. THEY HAVEN'T TOLD US IN

ADVANCE WHAT ISSUES THEY'RE GOING TO CONTEST AND WHAT ISSUES

THEY'RE GOING TO STIPULATE TO. THAT MEANS I HAVE TO WAIT. IF

I'M GOING TO OPPOSE THAT MOTION WITH EXPERT TESTIMONY, AS I

FULLY EXPECT TO DO, I HAVE TO WAIT UNTIL I GET THEIR MOTION.

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THEN I HAVE TO COME DOWN AND SAY TO THE COURT I NEED ACTUALLY

ANOTHER 60 DAYS. I'VE GOT TO GO FIND EXPERTS. THEY'RE

LOCATED ACROSS THE LAND. THEIR TIME IS PRECIOUS TO THEM.

I'VE GOT TO MEET WITH THEM. I'VE GOT TO PREPARE MY RESPONSIVE

AFFIDAVITS.

NOW, I WANT TO GET THIS THING DONE, SO MAYBE I GO GET MY

EXPERTS TOMORROW AND I JUST CROSS MY FINGERS THAT I'M ABLE TO

FORECAST WHAT THE STATE WILL AND WILL NOT CONCEDE. MAYBE I'VE

SPENT TENS OF THOUSANDS OF DOLLARS HIRING EXPERTS THAT I DON'T

NEED. SO, YOU KNOW, IF WE'RE GOING TO CUT THROUGH IT, YOUR

HONOR, ONE OF THE THINGS WE NEED TO CUT THROUGH IS TAKE THE

STATE UP ON THEIR VEILED OFFER IN THEIR PAPERS THAT, GEE,

MAYBE WE WON'T CONTEST SOME OF THESE THINGS, SUCH AS THE

PLAINTIFFS ARE IN COMMITTED RELATIONSHIPS. MAYBE WE WON'T

CONTEST SOME OF THESE THINGS. YOU KNOW, MAYBE THAT MY CLIENTS

AND THE GROUP THEY'RE IN HAS BEEN HISTORICALLY DISCRIMINATED

AGAINST. I'D LIKE TO KNOW THAT, OTHERWISE I'M GOING TO GET AN

EXPERT THAT TALKS ABOUT WHETHER OR NOT THEY'VE BEEN

HISTORICALLY DISCRIMINATED AGAINST.

IT ACTUALLY WOULD SAVE ME A LOT OF TIME AND MONEY IF THE

COURT WOULD MAKE THEM DO THAT. THE PROBLEM I SEE IS I DON'T

THINK THE COURT WANTS TO DRAFT SOMETHING THAT SAYS TELL ME

WHAT THE ELEMENTS ARE THAT YOU'RE GOING TO CONCEDE AND NOT

CONCEDE. AND I DON'T THINK WE WANT THE STATE TO DO IT. I

THINK WE WANT TO SERVE DISCOVERY TO DO IT AND WE'LL GET THEIR

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ANSWERS. AND, YOUR HONOR, IF THEY DON'T PROVIDE EVIDENCE OR

GIVE SUFFICIENT ANSWERS, THEN, YOU KNOW, UNDER RULE 26, RULES

37, THEY'RE PRECLUDED FROM COMING BACK WITH ADDITIONAL

INFORMATION AT TRIAL.

WHAT I WANT TO AVOID IS EXACTLY WHAT YOU'RE TALKING

ABOUT, WHICH IS GOING AROUND AND AROUND IN CIRCLES AS THE

STATE CHANGES ITS POSITION. THEY WANT TO FILE A SUMMARY

JUDGMENT MOTION, THEY DON'T WANT TO DO DISCOVERY, THEY DON'T

WANT TO GET THEIR OWN EXPERTS, GREAT, BUT THEY NEED TO COMMIT

TO WHERE THEY ARE SO THAT WE CAN FIGURE OUT WHERE THEY ARE SO

THAT WE CAN MOVE THIS CASE FORWARD. SO THAT'S WHAT I'M

SAYING.

THE COURT: OF COURSE THEY'RE THE DEFENDANTS IN THE

CASE. I MEAN YOU'RE THE PLAINTIFF. YOU FILED YOUR CLAIMS.

OKAY. WELL, LET'S HEAR FROM MR. LOTT. MAYBE I'M ACTING ON AN

INCORRECT ASSUMPTION THAT THE SUMMARY JUDGMENT MOTIONS WOULD

HELP US NARROW THE LEGAL AND FACTUAL ISSUES BEFORE US, BUT

LET'S SEE WHAT THE STATE SAYS.

MR. LOTT, AM I MISTAKEN ABOUT ALL OF THAT?

MR. LOTT: YOU'RE NOT. THANK YOU, YOUR HONOR. WE

VIEW THIS AS A CASE THAT WOULD BE MORE EXPEDITIOUSLY DECIDED

THROUGH SUMMARY JUDGMENT.

THE COURT: WHY IS THAT?

MR. LOTT: WELL, BY BRINGING THE LEGAL ISSUES TO THE

COURT. AGAIN, WE DON'T VIEW THIS AS A FACTUAL ISSUE CASE.

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AND WE TRIED TO DISTINGUISH IN THE SUBMISSION THAT WE FILED

YESTERDAY BETWEEN ADJUDICATIVE FACTS AND LEGISLATIVE FACTS.

THE FACTS THAT THE STATE PROBABLY WOULD STIPULATE TO WOULD BE

ADJUDICATIVE FACTS REGARDING THE PARTIES, THEIR SEXUAL

ORIENTATION, THE FACT THAT THEY'RE COUPLES, THAT THEY -- THAT

THEY WISH TO BE MARRIED. THAT ONE OF THE COUPLES HAS BEEN

MARRIED IN IOWA. WE DON'T SEE THOSE AS BEING HIGHLY DISPUTED

FACTS.

THE DISPUTED FACTS ARE THE LEGISLATIVE FACTS, WHAT ARE

TERMED LEGISLATIVE FACTS, HISTORY, PHILOSOPHICAL QUESTIONS.

THE PARTIES ARE GOING TO HAVE DIFFERENT VIEWS ON THOSE TYPE OF

ISSUES. AND DOING DISCOVERY, I DON'T REALLY SEE HOW THAT'S

GOING TO PROVIDE ANY ASSISTANCE IN ADVANCING THE CASE. EVEN

HAVING A HEARING WHERE WE HAVE A WITNESS TESTIFY ABOUT A

PHILOSOPHICAL QUESTION OR A SOCIAL ISSUE, THE COURT IS IN THE

IN THE ROLE OF MAKING THOSE DECISIONS. THE PARTIES CAN

PRESENT THEIR OWN VIEW ON THOSE ISSUES, BUT THE COURT HAS TO

DECIDE THOSE ISSUES. AND IT WOULD BE INAPPROPRIATE FOR A

WITNESS TO TELL THE JUDGE WHAT THE LAW IS. THAT'S THE COURT'S

ROLE TO DECIDE WHAT THE APPROPRIATE RULE OF LAW IS.

AS FAR AS DISCOVERY --

THE COURT: DOES WINDSOR JUST ANSWER THAT QUESTION

FOR US?

MR. LOTT: EXCUSE ME?

THE COURT: DOES THE WINDSOR DECISION, DOES IT JUST

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TELL US THE ANSWER TO THESE QUESTIONS?

MR. LOTT: I THINK --

THE COURT: IS IT A PURELY LEGAL SET OF QUESTIONS

THAT ARE IN FRONT OF US IN THIS LAWSUIT?

MR. LOTT: I BELIEVE IT'S PRIMARILY LEGAL ISSUES,

AND IT MAY BE EXCLUSIVELY LEGAL ISSUES. THE OTHER THING THAT

MAY OCCUR, IF THERE IS A FACTUAL ISSUE THAT COMES UP AFTER

PLEADINGS ARE SUBMITTED, THE COURT CAN MAKE A DECISION THAT I

NEED SOME ADDITIONAL WORK ON A FACTUAL ISSUE THAT'S SEPARATE

AND APART FROM DECIDING THE LEGAL ISSUE. THAT CAN BE DONE

THROUGH THE PLEADINGS.

ON THE DISCOVERY DESCRIPTION THAT MR. MAGLEBY HAS MADE,

WHAT I FORESEE IS IF WE RECEIVE A SET OF INTERROGATORIES

ASKING US TO SET FORTH THE COMPELLING STATE INTEREST, WE'RE

GOING TO OBJECT TO THAT. IT'S GOING TO BE AN ISSUE THAT THERE

WILL BE AN OBJECTION. WE'RE GOING TO HAVE TO HAVE A HEARING

ON IT. THE COURT'S GOING TO HAVE TO DECIDE. AND BY GOING THE

ROUTE OF PRESENTING IT AS A LEGAL ARGUMENT THROUGH SUMMARY

JUDGMENT, WE SHORTCUT HAVING TO DO ALL THAT. IT WOULD TAKE

MORE TIME TO HAVE DISCOVERY DISPUTES, HAVE THE COURT RULE ON

THOSE AND INCH BY INCH MOVE THE CASE FORWARD.

THE COURT: I THINK THAT'S MY FEELING ABOUT IT AS

WELL. WHAT HAPPENS WHEN MR. MAGLEBY RESPONDS TO YOUR MOTION

FOR SUMMARY JUDGMENT WITH A RULE 56(D) MOTION AND SAYS NOW I

SEE WHAT IT IS THEY'RE SAYING. HERE IS THE DISCOVERY THAT WE

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HAVE TO TAKE, AND HERE IS WHAT WE NEED TIME TO ADDRESS, THEN

WHAT DO WE DO?

MR. LOTT: WE'RE GOING TO HAVE TO HAVE A HEARING.

WE MAY OBJECT TO THAT PROCEDURE. WE'RE GOING TO HAVE TO HAVE

A HEARING AND THE COURT IS GOING TO HAVE TO DECIDE WHAT

DISCOVERY IS APPROPRIATE AND WHAT'S NOT. AND REALLY IT GOES

AGAIN TO THE QUESTION OF ADJUDICATIVE FACTS VERSUS LEGISLATIVE

FACTS.

THE COURT: HOW WILL THE STATE'S MOTION FOR SUMMARY

JUDGMENT, IF WE GO IN THIS DIRECTION, HOW WILL THAT HELP US

NARROW THE ISSUES IN THIS CASE AND EXPEDITE RESOLUTION OF THIS

CASE?

MR. LOTT: THE ISSUES AS IDENTIFIED IN OUR ANSWER

ARE, NUMBER ONE, SUBJECT MATTER JURISDICTION OF THE COURT.

THERE'S SOME CASE LAW WHETHER SAME SEX MARRIAGE IS EVEN A

FEDERAL QUESTION. THAT WOULD BE NUMBER ONE. IF THE COURT

DOESN'T HAVE JURISDICTION, THE CASE ENDS. DUE PROCESS IS AN

ALLEGATION, SO THERE'S GOING TO HAVE TO BE A SHOWING BY THE

PLAINTIFFS THAT WHAT WE'RE TALKING ABOUT IS A FUNDAMENTAL

RIGHT TO GET TO THE STRICT SCRUTINY LEVEL OF REVIEW. IF NOT,

IT'S A RATIONAL BASIS REVIEW. THE STATE WOULD SET FORTH ITS

LEGISLATIVE FACTS, ITS LEGITIMATE INTERESTS IN TRADITIONAL

MARRIAGE. THAT WOULD BE THE DUE PROCESS PART, EQUAL

PROTECTION, WE'D LOOK AT CLASSIFICATION, SAME SEX MARRIAGE

VERSUS TRADITIONAL MARRIAGE, IF THERE ARE LEGITIMATE STATE

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INTERESTS FOR UTAH'S LAW. THERE'S ALSO A FULL FAITH AND

CREDIT ISSUE, WHETHER UTAH HAS THE RIGHT TO NOT ACCEPT A

LAWFUL MARRIAGE FROM ANOTHER STATE BECAUSE OF UTAH'S STRONG

PUBLIC POLICY IN THE OTHER DIRECTION. SO THOSE WOULD BE THE

ISSUES THAT WOULD BE RAISED IN A MOTION FOR SUMMARY JUDGMENT.

THE COURT: IF WE GO IN THAT DIRECTION, HOW QUICKLY

CAN THE STATE FILE SUCH A MOTION?

MR. LOTT: WE ANTICIPATED FILING EITHER THE MIDDLE

OR LATTER PART OF OCTOBER. AND WHAT WE WOULD FORESEE AND

PROPOSE IS THAT WE DO CROSS-MOTIONS FOR SUMMARY JUDGMENT, THAT

THE PARTIES DO ONE RESPONSE, THAT THERE NOT BE NECESSITY FOR A

REPLY UNLESS, YOU KNOW, SOMETHING UNUSUAL IS ALLEGED IN THE

PLEADINGS, AND THEN HAVE A HEARING PROBABLY IN JANUARY IF THE

COURT COULD ACCOMMODATE IT.

THE COURT: ALL RIGHT, MR. LOTT, THANK YOU. IS

THERE ANYTHING MORE YOU WANTED TO TOUCH ON BEFORE WE HEAR --

MR. LOTT: I DON'T BELIEVE SO, UNLESS IN COURT HAS

ANY QUESTIONS.

THE COURT: WE MAY BE HERE FOR A LITTLE WHILE, BUT

I UNDERSTAND FOR NOW. THANK YOU.

MS. GODDARD, DO YOU CARE TO BE HEARD?

MS. GODDARD: JUST BRIEFLY, YOUR HONOR.


MS. GODDARD: THE COUNTY'S ROLE IN THIS CASE, AS I

THINK PLAINTIFFS' COUNSEL CONCEDED, IS REALLY ON THE SIDELINES

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IN A LOT OF WAYS. OUR COUNTY CLERK HAS A MINISTERIAL DUTY TO

JUST APPLY THE LAW AS IT CURRENTLY EXISTS. THAT SAID --

THE COURT: HOW DOES IT CURRENTLY EXIST?

MS. GODDARD: AS WE UNDERSTAND IT --

THE COURT: I'M KIDDING.

MS. GODDARD: RIGHT. YOU KNOW, WHAT WE WOULD SAY

THOUGH IS THAT TO THE EXTENT WE CAN EXPEDITE THIS CASE TO GET

A RULING SO THAT SHE HAS GUIDANCE SOONER RATHER THAN LATER, I

THINK THAT WE SUPPORT THAT IDEA. WHAT THE JUDGE RECOMMENDED,

YOUR RECOMMENDATION FOR DOING CROSS-MOTIONS FOR SUMMARY

JUDGMENT OR AT LEAST THE STATEMENT FILING A MOTION FOR SUMMARY

JUDGMENT IN RELATIVELY SHORT ORDER I THINK MAKES SENSE. I

THINK IT ALSO MAKES SENSE TO STAY DISCOVERY IN THE CASE UNTIL

THOSE MOTIONS ARE DECIDED BECAUSE I THINK, EVEN WHEN

MR. MAGLEBY WAS SPEAKING, THE ONLY DISCOVERY THAT HE WAS

REFERRING TO WERE IMPROPER CONTENTION INTERROGATORIES OR

REQUESTS FOR INFORMATION THAT WE REALLY CAN'T PROVIDE, LIKE

FOR EXAMPLE THE FACTORS GOING INTO WHETHER HEIGHTENED SCRUTINY

WOULD APPLY. AND THAT'S REALLY NOT SOMETHING FOR THE PARTIES

TO ANSWER, CERTAINLY NOT THIS EARLY IN THE LITIGATION.

SO WE ACTUALLY WOULD AGREE WITH THE STATE'S PROPOSED

SCHEDULE OF DOING MOTIONS FOR SUMMARY JUDGMENT IN RELATIVELY

SHORT ORDER, FOR EXAMPLE, THE END OF OCTOBER, A HEARING IN

JANUARY IF THE COURT WOULD SUPPORT THAT AND HAVE TIME FOR

THAT, AND THEN HAVE A RELATIVELY EXPEDITED DISCOVERY SCHEDULE

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FROM -- BASED ON WHATEVER THE RULINGS ARE IN THE MOTIONS

FOR SUMMARY JUDGMENT, ASSUMING AT LEAST PART OF THE CASE

SURVIVES, DOING DISCOVERY RELATIVELY QUICKLY WITH A SHORT TIME

FOR FACT DISCOVERY AND THEN A SLIGHTLY LONGER TIME FOR EXPERT

DISCOVERY.

THE COURT: DO YOU CONTEMPLATE THAT IF WE PROCEEDED

WITH MOTIONS FOR SUMMARY JUDGMENT AT THE OUTSET OF THE CASE

THAT THE COUNTY WOULD FILE ITS OWN MOTION OR DO YOU THINK THE

MOTION WOULD COME JOINTLY FROM THE DEFENDANTS OR DO YOU KNOW?

MS. GODDARD: AS OF RIGHT NOW I ACTUALLY WOULD

SUSPECT THAT THE COUNTY MIGHT JOIN IN PART TO THE STATE'S

MOTION FOR SUMMARY JUDGMENT. I CAN'T SAY THAT WE WOULD JOIN

ALL OF THE MOTION FOR SUMMARY JUDGMENT BECAUSE WE HAVEN'T SEEN

IT. I DON'T THINK WE ANTICIPATE FILING OUR OWN SEPARATE

MOTION.

THE COURT: DOES THE COUNTY HAVE A POSITION ON THIS

ISSUE, ON THE LEGAL ISSUES IN THIS CASE?

MS. GODDARD: WE DO. AND THE COUNTY'S POSITION IS

THAT MS. SWENSEN'S DUTY IS MINISTERIAL IN NATURE AND HER JOB

IS TO ENFORCE THE LAW AS IT IS WRITTEN AND CONSTRUED BY THE

COURTS.

THE COURT: I DON'T THINK MR. MAGLEBY DISPUTES

THAT.

MS. GODDARD: AND YET WE'RE HERE.

THE COURT: WELL, I THINK YOU'RE PROBABLY A

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NECESSARY PARTY. BUT DOES THE COUNTY HAVE A POSITION ON THE

MERITS OF THE UNDERLYING CLAIMS?

MS. GODDARD: NOT THAT WE'RE PREPARED TO SPEAK TO

TODAY.

THE COURT: WELL, DO YOU ANTICIPATE THAT YOU'LL

EXPRESS ANY OPINION ABOUT THOSE ISSUES IN THE LITIGATION?

MS. GODDARD: I THINK THAT LIKELY WE WOULD IN

DECIDING WHAT PORTIONS, IF ANY, OF THE STATE'S MOTION FOR

SUMMARY JUDGMENT THE COUNTY WOULD JOIN.

THE COURT: AND WHAT WOULD DRIVE THAT DETERMINATION?

MS. GODDARD: WELL, IT CERTAINLY WOULDN'T BE

ANYTHING THAT WE THINK ANYBODY IS GOING TO BE GETTING IN THIS

CASE IN FACT DISCOVERY. I THINK IT WILL DEPEND ON A FURTHER

AND MORE IN DEPTH ANALYSIS OF THE CASE LAW, WHAT'S GOING ON IN

OTHER JURISDICTIONS, A BETTER ANALYSIS OF THE WINDSOR

DECISION, THE PROP 8 DECISION, AND THEN JUST LOOKING AT WHAT

ARGUMENTS THE STATE ARE MAKING.

FOR EXAMPLE, THE COUNTY MIGHT NOT HAVE A POSITION ON THE

STATE'S SOVEREIGN RIGHT TO DEFINE MARRIAGE BECAUSE IT DOESN'T

IMPLICATE THE COUNTY IN ANY WAY. THE COUNTY MIGHT, HOWEVER,

HAVE A POSITION ON WHAT STANDARD OF SCRUTINY APPLIES IN THE

CASE. I'M NOT PREPARED TO SAY TODAY WHAT I THINK THAT IS BUT

THAT MIGHT BE A PORTION OF THE STATE'S MOTION FOR SUMMARY

JUDGMENT OR IT MIGHT EVEN BE A PORTION OF THE PLAINTIFFS'

MOTION FOR SUMMARY JUDGMENT IF THEY DECIDE TO FILE ONE THAT WE

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WOULD DECIDE TO JOIN. RIGHT NOW WE JUST HAVEN'T MADE ANY

DECISIONS IN THAT REGARD.

THE COURT: ALL RIGHT, THANK YOU.

MR. MAGLEBY.

MR. MAGLEBY: YOUR HONOR, YOU CAN SEE THAT I WAS

EAGER TO JUMP UP. I CAN'T HELP MYSELF.

THE COURT: WELL, WE'RE GOING TO HEAR FROM ANYBODY

UNTIL WE'VE HEARD IT ALL TODAY.

MR. MAGLEBY: ALL RIGHT. MS. TOMSIC POINTED

SOMETHING OUT TO ME THAT I MAY HAVE BEEN UNCLEAR IN THE SENSE

THAT WE'RE NOT REALLY TALKING ABOUT A CLASSIC FACT DISCOVERY,

ESPECIALLY NOT GIVEN WHAT I'VE NOW HEARD FROM THE STATE ABOUT

STIPULATING TO CERTAIN ISSUES. WE'RE TALKING ABOUT LIMITED

DISCOVERY AND WORKING ON OUR EXPERTS AND FINDING OUT IF THE

STATE HAS ANY EXPERTS. THE HEARING DATE THAT WE WERE

PROPOSING, THE TRIAL DATE, WAS GEARED TOWARDS RESOLVING THE

EXPERT DISCOVERY ISSUES. THAT WAS WHAT WE THOUGHT WAS A

GENEROUS AMOUNT OF TIME FOR THE PARTIES TO GET IN THEIR

REPORTS.

THE COURT: WHAT WILL BE THOSE ISSUES?

MR. MAGLEBY: WELL --

THE COURT: WHAT IS THE EXPERT -- WHAT ARE THE

EXPERT DISCOVERY ISSUES THAT WE'LL HAVE TO RESOLVE IN THIS

CASE?

MR. MAGLEBY: WELL, SO FOR EXAMPLE, YOUR HONOR --

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THE COURT: ARE THEY ISSUES ABOUT THE HISTORICAL

DEFINITION OF MARRIAGE?

MR. MAGLEBY: YEP, YEP.

THE COURT: AND THE SOCIETAL IMPACT OF --

MR. MAGLEBY: YEP.

THE COURT: -- STRAIGHT AND GAY COUPLES AND CHILD

REARING AND STATE INTERESTS --

MR. MAGLEBY: YES, WHETHER THE STATE HAS A -- YOU

KNOW, I MEAN I'VE GOT TO KNOW WHAT THE STATE'S GOING TO CLAIM

BECAUSE NOW IT'S A BIG MYSTERY TO ME, OF COURSE. BUT, YOU

KNOW, FOR EXAMPLE ARE THEY GOING TO MAKE THE SAME CLAIMS THAT

WERE MADE IN THE PROP 8 CASE? I WOULD LIKE TO KNOW THAT.

WHAT I WOULD SAY, YOUR HONOR -- AND I SEE WHERE YOU'RE

LEANING AND I KNOW YOU HAVEN'T PREJUDGED THIS -- BUT WHAT I

WOULD SAY IS THIS. IF WE ACCEDE -- NOT THAT I'M GOING TO

ACCEDE -- BUT IF THE COURT ACCEDES TO THE STATE'S POSITION,

THAT WHAT I WOULD LIKE AS PART OF THAT IS THEY NEED TO PUT

EVERYTHING THEY'VE GOT INTO THAT SUMMARY JUDGMENT MOTION. I

DON'T WANT TO HAVE TO COME BACK AND DO A SECOND ONE WHEN I WIN

THE FIRST ONE, AND THEN I STILL HAVEN'T BEEN ABLE TO DO ANY

DISCOVERY. AND THEY'RE GOING TO SAY, WELL, GEE -- AND THERE'S

NOT GOING TO BE A TRIAL DATE SET; RIGHT? THERE'S NOT GOING TO

BE ANY DISCOVERY DEADLINES OR EXPERT WITNESS DEADLINES. AND

THEY'RE GOING TO SAY, GOSH, WE'D LIKE TO FILE A SECOND SUMMARY

JUDGMENT MOTION.

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CHIEF?

MR. MAGLEBY: WELL, ACTUALLY NO. I THINK I'M GOING

TO WIN ON WHATEVER LEGAL ISSUES THE STATE CAN ADVANCE. FOR

EXAMPLE IF THEY GIVE A RATIONAL BASIS, I STILL THINK I'M GOING

TO WIN THAT ONE. NOW, WHAT YOU'RE SAYING DO I NEED IT

RESOLVED IN MY FAVOR ON SUMMARY JUDGMENT? I DON'T THINK SO.

I THINK I CAN HAVE IT RESOLVED IN MY FAVOR AFTER AN

EVIDENTIARY HEARING.

THE COURT: IN EVERY CASE THAT I THINK WE LOOKED AT

RECENTLY RESOLVING OR ADDRESSING THESE ISSUES OR TEEING THEM

UP FOR RESOLUTION, WE'VE SEEN CROSS-MOTIONS FOR SUMMARY

JUDGMENT FROM BOTH PARTIES AT THE SAME TIME AT THE OUTSET OF

THE LITIGATION TO DEFINE THE ISSUES, THE LEGAL ISSUES AND

PARAMETERS OF THE CASE. I'M JUST TRYING TO DECIDE WHAT THE

IMPACT IS IF THE PLAINTIFFS DECIDE THEY DON'T CARE TO

PARTICIPATE IN THAT PROCESS. WHAT'S THE -- WHAT DO YOU VIEW

AS THE IMPACT IF THE STATE FILES A MOTION FOR SUMMARY

JUDGMENT, THE PLAINTIFFS DON'T, AND SAY THE PLAINTIFFS

PREVAIL. WHERE DOES THAT PUT US?

MR. MAGLEBY: THAT PUTS US WHERE I THINK WE'RE GOING

TO END UP ANYWAY, WHICH IS WE'RE GOING TO COME FORWARD WITH

OUR EXPERT REPORTS AND WE'RE GOING TO ASK FOR A HEARING.

WE'RE GOING TO PRESENT THE EVIDENCE. WE'RE GOING TO DO WHAT

TRIAL COURTS DO. WE'RE GOING TO PUT OUR WITNESSES UP THERE.

THE STATE CAN HAVE AT THEM. IF THE STATE DOESN'T WANT TO PUT

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ON ITS OWN, IF IT THINKS IT'S PURELY A LEGAL ISSUE, THE STATE

CAN MAKE THAT CHOICE.

BUT, YOUR HONOR, AS WE LOOKED AT THE CASES -- YOU'VE

TALKED ABOUT NEVADA AND HAWAII, AND SO AS THE STATE, WITH ALL

DUE RESPECT TO THOSE LAWYERS, I WISH THEY HAD DEVELOPED A

FACTUAL RECORD ON SOME OF THE ISSUES THAT ARE NOW GOING UP ON

APPEAL.

THE COURT: SO ARE WE GOING TO PLAY THE ROLE OF THE

CALIFORNIA COURT AND START DECIDING QUESTIONS ABOUT WHAT

MARRIAGE MEANS? IS THAT -- AM I GOING TO DO THAT?

MR. MAGLEBY: MAYBE.

THE COURT: AM I?

MR. MAGLEBY: YEAH, MAYBE.

THE COURT: THAT'S THE ROLE OF A JUDGE YOU THINK?

MR. MAGLEBY: IT IS, YOUR HONOR. I MEAN THESE ARE

CONSTITUTIONAL ISSUES. THEY DON'T GO TO A JURY. THEY'RE

SIGNIFICANT ISSUES AND THAT'S ONE OF THE REASONS THEY GO TO

JUDGES, PARTICULARLY ARTICLE III JUDGES THAT ARE APPOINTED TO

DECIDE THESE FROM YOUR LEVEL, YOUR HONOR, UP TO THE CIRCUIT

COURT LEVEL, UP TO THE UNITED STATES SUPREME COURT.

BUT WE LOOK AT IT ON BEHALF OF OUR CLIENTS, WHO HAVE VERY

REAL AND SIGNIFICANT INTERESTS HERE, AND WE LOOK AT THOSE

OTHER CASES AND WE SAY, GOSH, WISH WE HAD A LITTLE MORE ON THE

RECORD, YOU KNOW. AND WHAT'S INTERESTING IS THE PROPONENTS OF

PROP 8 THEY ACTUALLY COULDN'T GET ANYTHING INTO THE RECORD TO

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SUPPORT THEIR POSITION. THEY -- PEOPLE RAN FOR THE HILLS.

THEIR EXPERTS WOULDN'T TESTIFY.

I WOULD SUGGEST, YOUR HONOR, AS I THINK WE ALL KNOW FROM

CIVIL PRACTICE, IF THE OTHER SIDE GIVES UP ON AN IMPORTANT

POINT OR ELEMENT, IT'S BECAUSE THEY THINK THEY CAN'T WIN IT.

I THINK THAT'S HOW THIS IS GOING TO PLAY OUT, AND I'M ENTITLED

TO ADVANCE THOSE ARGUMENTS ON BEHALF OF MY CLIENTS.

SO AM I SAYING WE WON'T FILE A SUMMARY JUDGMENT MOTION?

NO. BUT I'M SAYING THAT'S NOT THE RECORD THAT I MIGHT WANT TO

CREATE.

THE COURT: WELL, IT WON'T -- IT WON'T BE THE RECORD

ON APPEAL, RIGHT, I MEAN EVEN IF -- EVEN IF WE GO IN THIS

DIRECTION. SAY THERE ARE CROSS-MOTIONS FOR SUMMARY JUDGMENT

AND THEY'RE RESOLVED, UNLESS THOSE MOTIONS ARE ENTIRELY

DISPOSITIVE OF THE WHOLE CASE, THEN THERE WILL BE MORE WORK TO

DO. THE RECORD WILL BE --

MR. MAGLEBY: THAT'S RIGHT.

THE COURT: JUST SO WE'RE CLEAR ON ONE THING,

RIGHT, I MEAN WHAT I'M PROPOSING, OR WHAT I PROPOSED AT LEAST

AT THE OUTSET OF THE HEARING WAS NOT THAT THERE BE NO

DISCOVERY IN THIS CASE; RIGHT? I MEAN WE'RE ON THE SAME -- I

DON'T -- I HOPE I DIDN'T MISSPEAK. IT'S JUST A QUESTION OF

TIMING ABOUT WHEN THE DISCOVERY WOULD TAKE PLACE. AND --

MR. MAGLEBY: AND THANK YOU FOR -- YOU KNOW, THANK

YOU FOR CLARIFYING THAT, YOUR HONOR, BECAUSE I WAS I THINK

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OPERATING ON THE ASSUMPTION THAT THERE WOULD BE VERY LITTLE

DISCOVERY. WHAT I'M SAYING IS WE KNOW THERE'S GOING TO BE

SOME -- AT LEAST I'M VERY CONFIDENT THERE'S GOING TO BE SOME.

WHY MAKE ME WAIT TO FIND OUT.

I MEAN THE STATE MAY NOT BE ABLE TO FILE A DISPOSITIVE

MOTION IN 30 DAYS, BUT THEY OUGHT TO BE ABLE TO TELL ME WHAT

THINGS THEY'RE GOING TO CONCEDE, WHAT THEY'RE GOING TO

STIPULATE TO AND WHAT THEY'RE NOT.

THE COURT: I DON'T KNOW WHY YOU'LL GET THAT ANSWER

ANYMORE QUICKLY THROUGH DISCOVERY THAN YOU WILL THROUGH THE

FILING OF A MOTION FOR SUMMARY JUDGMENT. IT SEEMS TO ME JUST

THE OPPOSITE. BUT IF YOU FILE THAT DISCOVERY, IF YOU SERVE

THAT DISCOVERY -- AND I DON'T KNOW WHAT IT LOOKS LIKE YET.

I'VE SEEN YOUR LIST OF PROPOSED TOPICS OR AREAS. I FULLY

EXPECT THAT THERE WILL BE OBJECTIONS TO WHAT YOU'RE PROBABLY

MOST INTERESTED IN. AND THERE WILL BE BRIEFING, AND THERE

WILL BE A MOTION TO COMPEL AND A MOTION FOR PROTECTIVE ORDER

AND A HEARING. AND THEN AT THE HEARING WHAT WE'RE GOING TO

HAVE TO DECIDE IS UNDER RULE 26 IS THE DISCOVERY REASONABLY

LIKELY TO LEAD TO THE DISCOVERY OF ADMISSIBLE -- OR EXCUSE

ME -- RELEVANT EVIDENCE. AND DOESN'T THE ANSWER TO THAT TURN

ON THE VERY QUESTION THAT WE'RE TRYING TO RESOLVE IN SUMMARY

JUDGMENT IN PART? WHAT ARE THE LEGAL QUESTIONS?

MR. MAGLEBY: MAYBE, MAYBE. BUT THE STATE MAY --

FOR EXAMPLE IF I SERVED ADMISSIONS, RIGHT, THEY MAY COME BACK

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AND ADMIT THE THINGS THAT I NOW HEAR THE STATE IS WILLING TO

ADMIT THAT THEY DIDN'T ADMIT IN THE ANSWER. AND THAT TAKES

THOSE THINGS OFF THE TABLE. MAYBE THEY CAN GIVE ME THEIR LIST

OF COMPELLING GOVERNMENTAL INTERESTS. I'M NOT ASKING FOR

THEIR WHOLE BRIEF.

BUT WHAT THEY'VE TOLD YOU IS THEY DON'T THINK WE NEED TO

DO ANYTHING MORE THAN WHAT HAS ALREADY BEEN DONE. SO

PRESUMABLY THEY HAVE THEIR ANSWERS. AND THE BIG DIFFERENCE

BETWEEN THE SUMMARY JUDGMENT MOTION AND DISCOVERY IS, YOUR

HONOR, I CAN PIN THEM DOWN AND THEY CAN'T CHANGE THEIR MIND

LATER.

THE COURT: I UNDERSTAND.

MR. MAGLEBY: UNLESS YOU SAY THIS IS YOUR

DISPOSITIVE MOTION CUTOFF, AND SO WE'RE GOING TO HEAR THIS

ONCE AND WE'RE NOT -- I MEAN THERE'S A REASON COURTS SET

DISPOSITIVE MOTION CUTOFFS, RIGHT, SO YOU DON'T GET TWO OR

THREE SUMMARY JUDGMENT MOTIONS.

THE COURT: WELL, BUT THERE'S A REASON IN MOST CASES

I THINK IT MAKES SENSE TO PROCEED THROUGH FACT DISCOVERY AND

THEN THROUGH EXPERT DISCOVERY AND THEN TO MOTIONS FOR SUMMARY

JUDGMENTS. AND, YOU KNOW, AND I GUESS THE QUESTION THAT STILL

REMAINS IN MY MIND IS WHETHER A MORE DIRECT AND EXPEDITIOUS

WAY TO GET TO THE END RESULT HERE IS TO FIRST DEFINE THE

LEGAL -- EXCUSE ME, DEFINE -- WELL, DEFINE THE ISSUES THAT WE

NEED TO HAVE DISCOVERY ON, IF ANY, AND THEN FIGURE OUT WHAT

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THAT DISCOVERY IS, AND THEN -- IT WON'T TAKE LONG; RIGHT? I

MEAN IS TWO MONTHS PLENTY OF TIME FOR FACT DISCOVERY IN THIS

CASE?

MR. MAGLEBY: OH, YEAH.

THE COURT: HOW DO YOU KNOW THAT TODAY? HOW DO YOU

KNOW WHICH ISSUES ARE RELEVANT --

MR. MAGLEBY: WELL --

THE COURT: -- FOR FACT DISCOVERY?

MR. MAGLEBY: THERE ARE -- THIS IS NOT A COMPLEX

COMMERCIAL CASE WITH TENS OF THOUSANDS OF DOCUMENTS AND

MULTIPLE WITNESSES. THIS IS -- THERE'S BASICALLY A 30(B)(6)

WITNESS; RIGHT? AND I'M NOT SUGGESTING WE'RE GOING TO TAKE

THE STATE'S DEPOSITION.

THE COURT: I WAS AFRAID YOU WERE GOING TO SAY THAT.

ARE YOU GOING TO DEPOSE THE GOVERNOR? ARE YOU GOING TO ASK

THE GOVERNOR WHAT THE STATE'S INTEREST IS IN A PROPOSITION

THAT WAS ENACTED BY THE VOTERS?

MR. MAGLEBY: DEPENDING UPON WHAT HAPPENS IN THE

SUMMARY JUDGMENT HEARING AND DISCOVERY ANSWERS, I GUESS I

MIGHT. DO I WANT TO? NO. I JUST WANT TO KNOW --

THE COURT: OF COURSE YOU DO. YOU'RE A PLAINTIFF'S

LAWYER. YOU CAN'T WAIT TO GET THE GOVERNOR UNDER OATH. I

UNDERSTAND THAT.

MR. MAGLEBY: EVERY MINUTE I SPEND DEPOSING THE

GOVERNOR IS DELAY AND MONEY. WHAT I'M SAYING, YOUR HONOR, IS

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I JUST DON'T WANT TO HAVE TO DO -- YOU KNOW, THEY FILE THE

MOTIONS, WE WIN, AND THEN THEY FILE ANOTHER MOTION, THEN THEY

FILE ANOTHER MOTION.

THE COURT: THAT'S A -- THAT'S A SUPREMELY RELEVANT

POINT, MR. MAGLEBY. LET ME ASK MR. LOTT ABOUT THAT. THANK

YOU.

MR. LOTT, HOW DO WE ENSURE THAT IF WE START DOWN THIS

PATH THAT WE DON'T JUST FRUSTRATE THE WHOLE THING, THE WHOLE

DESIGN OF THIS, BY HAVING THREE ROUNDS OF SUMMARY JUDGMENT

MOTIONS?

MR. LOTT: THE STATE'S INTEREST IS RECEIVING A

DISPOSITIVE RULING DECIDING THE CASE ONE WAY OR ANOTHER.

WE'RE NOT ANTICIPATING FILING A MOTION ON JURISDICTION,

GETTING A RULING, FILING A MOTION ON DUE PROCESS, GETTING A

RULING, FILING A MOTION ON EQUAL PROTECTION, GETTING A RULING.

THAT'S NOT THE INTENT. I DON'T KNOW WHY WE WOULD DO THAT.

THE COURT: IN YOUR VIEW THE MOTION THAT YOU'RE

CONTEMPLATING, YOU'VE GIVEN SOME -- I GATHER A LOT OF THOUGHT

TO THIS, AND YOU AND YOUR COLLEAGUES HAVE TALKED ABOUT IT.

YOU THINK THE MOTION THAT YOU INTEND TO FILE IS DISPOSITIVE OF

THE CASE WIN OR LOSE, EITHER WAY?

MR. LOTT: MOST LIKELY, YES.

THE COURT: WHEN WOULDN'T IT BE?

MR. LOTT: WELL, I'M HAVING A HARD TIME FIGURING OUT

WHAT REMAINING ISSUES OF FACT WOULD BE OUTSTANDING THAT WE

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HAVE TO PURSUE, BUT IF BY SOME REASON THERE WAS AN OUTSTANDING

ISSUE OF FACT THAT THE COURT FELT LIKE IT NEEDED TO HAVE

RESOLVED ONE WAY OR ANOTHER BEFORE ISSUING A RULING OF LAW,

THAT WOULD BE ONE SCENARIO.

THE COURT: YOU PROPOSED, MR. LOTT, A DEADLINE FOR

CROSS-MOTIONS FOR SUMMARY JUDGMENT. SUPPOSE -- SUPPOSE THE

PLAINTIFFS CHOOSE NOT TO FILE A MOTION FOR SUMMARY JUDGMENT

BUT INSTEAD SEEK TO RESPOND TO THE STATE. I ASSUME UNDER

THOSE CIRCUMSTANCES THE STATE WOULD LIKE AN OPPORTUNITY TO

REPLY.

MR. LOTT: YES.

THE COURT: YOU WERE THINKING IF THEY WERE

CROSS-MOTIONS, A SINGLE OPPOSITION REALLY WOULD HAVE FRAMED

ALL THE ISSUES. BUT IF WE'RE MOVING IN TURN, I SUSPECT THAT

IF THE STATE WERE TO FILE A MOTION FOR SUMMARY JUDGMENT AND

NOT THE PLAINTIFFS, WHAT YOU WOULD RECEIVE IN OPPOSITION WOULD

BE SOME -- A GOOD NUMBER OF DECLARATIONS AND EVIDENCE THAT

YOU'D WANT SOME OPPORTUNITY TO MEET?

MR. LOTT: ABSOLUTELY.

THE COURT: IF WE GO IN THAT DIRECTION, CAN THE

STATE FILE ITS MOTION FOR SUMMARY JUDGMENT BY THE END OF

SEPTEMBER, BY SEPTEMBER 27TH?

MR. LOTT: YES.

THE COURT: ALL RIGHT. LET'S DO THIS. LET'S TAKE A

SHORT RECESS. LET ME CHEW ON --

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MR. LOTT: I THINK I MISUNDERSTOOD YOU. YOU SAID BY

SEPTEMBER 27TH. I WAS STILL THINKING OCTOBER. I BELIEVE THAT

WE WOULD NEED MORE TIME. THAT WOULD ESSENTIALLY BE 30 DAYS.

THE STATE I DON'T THINK WOULD BE READY TO FILE ITS MOTION FOR

SUMMARY JUDGMENT WITHIN 30 DAYS.

THE COURT: OKAY. YOU NEED 45 -- 45 TO 60 IS WHAT

YOU WERE SUGGESTING EARLIER?

MR. LOTT: YES.

THE COURT: MR. MAGLEBY, IF WE GO IN THIS DIRECTION,

I GUESS YOU NEED TO SEE THE MOTION, BUT CAN THE PLAINTIFFS

RESPOND IN 45 DAYS? WE'RE KEEPING IN MIND EVERYONE'S DESIRE

TO MOVE THROUGH THIS QUICKLY.

MR. MAGLEBY: YOUR HONOR, WE THINK WE CAN DO IT IN

30 DAYS, UNLESS WHAT WE NEED TO DO IS GET EXPERT DECLARATIONS,

IF WE HAVE TROUBLE GETTING THAT FROM OUR EXPERTS FOR REASONS

THAT ARE BEYOND MY CONTROL. SO IF THE QUESTION IS HOW FAST

CAN THE LAWYERS SITTING OVER HERE BRIEF THIS THING, WE'LL DO

IT IN 30 DAYS.

THE COURT: IF THAT WERE THE QUESTION, I THINK YOU

COULD DO IT IN 10. I'M CONFIDENT OF THAT.

MR. MAGLEBY: BUT WHY DON'T YOU GIVE US 30, AND IF

WE NEED HELP, WE'LL COME BACK, AND IF WE DECIDE TO DO RULE 56

WE'LL COME BACK -- OR A 56(D) I GUESS.

THE COURT: IT CHANGED, DIDN'T IT, RIGHT.

MR. MAGLEBY: IT CHANGED ON ME, AND I'M TOO OLD TO

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REMEMBER THE NEW RULES.

THE COURT: ALL RIGHT, 56(D). IS THERE ANY REASON

WE CAN'T HAVE THIS -- IF WE GO IN THIS DIRECTION, IS THERE ANY

REASON WHY WE CAN'T HAVE A HEARING ON THESE ISSUES IN EARLY

DECEMBER? I'M PROJECTING A TIME LINE FORWARD. I THINK THAT

WOULD ALL WORK. I'M GOING TO GO LOOK AT A CALENDAR, BUT I'M

NOT -- I'M GOING TO THINK SOME MORE ABOUT WHAT YOU'VE SAID,

MR. MAGLEBY, TO MAKE SURE I'M NOT --

MR. MAGLEBY: WE'VE BEEN PASSING NOTES OVER HERE

ABOUT THE HEARING DATE, AND SOMETIME BETWEEN DECEMBER 1 AND

DECEMBER 15 IS WHAT WE WERE PROPOSING. I HAVE A TRIAL AT SOME

POINT IN DECEMBER, SO I WOULD JUST LOOK AT MY CALENDAR, BUT I

THINK DECEMBER 1ST OR AROUND THEN WOULD WORK FOR US.

THE COURT: MY INCLINATION WAS TO TRY TO GET THE

PARTIES IN, IF WE COULD, IF WE GO IN THIS DIRECTION, BY THE

FIRST WEEK IN DECEMBER.

MR. MAGLEBY: UNDERSTOOD, YOUR HONOR.

THE COURT: WITH AN EYE TOWARDS TRYING TO GIVE THE

PARTIES THE BENEFIT OF SOME RULING BEFORE THE END OF THE YEAR

SO THAT WE COULD STILL -- I MEAN MY CONCEPTION OF THINGS, IF

WE GO THIS ROUTE IN LIEU OF DISCOVERY AT THE OUTSET AND THEN

MOTIONS, WE WOULD NOT BE FAR OFF THE TIME LINE YOU'VE PROPOSED

FOR GETTING TO TRIAL IN ANY EVENT.

MR. MAGLEBY: I THINK THAT'S RIGHT. I WAS GETTING

EXCITED BECAUSE FROM WHAT I WAS HEARING FROM THE STATE I

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THOUGHT WE MIGHT GET THERE SOONER, BUT --

THE COURT: WELL, WHILE I'M INTERESTED IN MOVING

EXPEDITIOUSLY, MY FIRST CONCERN, AND I SAY THIS REPEATEDLY

FROM THE BENCH, IT'S OBVIOUS, PERHAPS, BUT THE PRIMARY CONCERN

IS GETTING THE RIGHT ANSWER, AND WE'LL TAKE WHAT TIME IT TAKES

TO GET THE RIGHT ANSWER. BUT I DON'T SEE WHY WE CAN'T DO THAT

ON THE KIND OF TIME FRAME WE'VE BEEN TALKING ABOUT.

LET'S RECESS FOR A FEW MOMENTS, GIVE YOU ALL A CHANCE TO

CONSULT WITH YOUR COLLEAGUES. LET ME THINK ABOUT IT AND SPEAK

WITH MY CLERKS AND THEN WE'LL COME BACK OUT.

MR. MAGLEBY: THANK YOU, YOUR HONOR.

(RECESS FROM 2:41 P.M. UNTIL 3:00 P.M.)

THE COURT: I DON'T GET TO PRACTICE LAW ANYMORE, SO

I DON'T GET TO TELL PEOPLE HOW TO RUN THEIR CASES, AND SO I'M

NOT GOING TO DO THAT IN THIS CASE EITHER. BUT LET ME SAY

THIS, AND THEN WHAT I'M GOING TO DO IS PROPOSE TWO ALTERNATIVE

SCHEDULES, AND I'M GOING TO GIVE THE PLAINTIFFS AN ELECTION

AND I'M GOING TO GIVE YOU A DATE BY WHICH TO NOTIFY EVERYONE

WHAT YOUR ELECTION IS, AND THEN WE'LL OPERATE UNDER ONE OF THE

TWO SCHEDULES THAT YOU'LL CHOOSE.

MR. MAGLEBY: I LIKE IT, AT LEAST RIGHT NOW.

MS. TOMSIC: YOU HAVEN'T HEARD WHAT HE SAID YET.

THE COURT: MR. MAGLEBY, YOU KNOW YOUR CASE BETTER

THAN I DO, AND YOU KNOW THE ISSUES BETTER THAN I DO, AND

YOU'VE GIVEN A GREAT DEAL MORE THOUGHT TO ALL OF THIS THAN I

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HAVE. I WILL SAY THIS. WE ARE GOING TO PROCEED WITH SOME

MOTION PRACTICE AT THE BEGINNING OF THE CASE TO NARROW AND

DEFINE THE ISSUES IN THE CASE BEFORE WE GET INTO FACT

DISCOVERY.

I MEAN I STILL CAN'T ESCAPE THE IDEA THAT EVEN IF WE LEFT

TODAY AND STARTED FACT DISCOVERY, AND YOU SERVED YOUR

DISCOVERY TOMORROW, THAT WE'D BE HERE ABOUT THE TIME OF THE

SUMMARY JUDGMENT HEARING RESOLVING THE MOTIONS TO COMPEL AND

FOR PROTECTIVE ORDER. AND I JUST THINK WE CAN ADVANCE THE

BALL MUCH MORE QUICKLY AND DIRECTLY, AND I BELIEVE THE STATE

CAN BE BOUND UP IN ITS -- IN THE POSITIONS THAT IT TAKES ON

SUMMARY JUDGMENT, PARTICULARLY IF THEY'RE ALSO RESPONDING TO A

CROSS-MOTION. THIS IS THE PART WHERE I DON'T GET TO DECIDE

HOW YOU FOLKS PROCEED.

I WILL TELL YOU, AS I'VE THOUGHT ABOUT THE ISSUES, I

THINK IT WOULD BE BENEFICIAL TO THE COURT IF I HAD THE BENEFIT

OF THE GUIDANCE AND WISDOM OF BOTH PARTIES ON THE LEGAL ISSUES

AT THE BEGINNING OF THE CASE, BUT YOU'LL DECIDE HOW YOU WANT

TO PRESENT YOUR CASE AND IN WHAT ORDER AND WHICH ISSUES YOU

WANT TO PRESENT AND WHEN.

SO WITH THAT IN MIND, WE'RE GOING TO PROCEED THIS WAY.

IF THE PLAINTIFFS ELECT TO FILE CROSS-MOTIONS FOR SUMMARY

JUDGMENT, THEN WE'LL HAVE THOSE FILED ON OR BEFORE OCTOBER 11,

AND THEN WE'LL HAVE OPPOSITIONS FILED ON OR BEFORE NOVEMBER

22ND. AND THAT WILL ALLOW BOTH PARTIES TWO BRIEFS TO PRESENT

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ISSUES, AND I THINK WE WILL SQUARELY HAVE PRESENTED EVERYTHING

WE NEED TO CONSIDER LEGALLY AT THAT POINT. WE'LL ALSO KNOW OF

NECESSITY WHETHER THERE ARE FACTUAL ISSUES THAT PREVENT

RESOLVING SOME OF THOSE ISSUES ON SUMMARY JUDGMENT AT THE

OUTSET.

IF THE PLAINTIFFS CHOOSE NOT TO FILE A CROSS-MOTION FOR

SUMMARY JUDGMENT, THEN THIS WILL BE THE SCHEDULE. WE'LL HAVE

THE STATE -- WELL, THE DEFENDANTS, FILE SUMMARY JUDGMENT

MOTIONS ON OR BEFORE OCTOBER 11. WE'LL HAVE AN OPPOSITION BY

THE PLAINTIFFS ON OR BEFORE NOVEMBER 12TH. THAT'S 30 DAYS --

IT'S ACTUALLY 31, I THINK, IF I DID MY MATH WELL. I WAS BAD

AT THIS AS A LAWYER AND I'M NO BETTER AT IT AS A JUDGE, EVEN

WITH THE CALENDAR IN FRONT OF ME. AND THEN REPLIES FROM THE

DEFENDANTS ON OR BEFORE NOVEMBER 27, WHICH I STILL THINK GETS

YOU IN BEFORE THE HOLIDAY BREAK THIS YEAR BECAUSE I THINK IT'S

LATE.

MR. MAGLEBY: DID YOU SAY 27TH OR 22ND?

THE COURT: 27TH.

MR. MAGLEBY: THANK YOU.

THE COURT: AND, IN ANY EVENT, OUR HEARING WILL BE

ON DECEMBER 4TH. THAT IS A WEDNESDAY. WE'LL BEGIN AT 10:00

A.M. I'LL HOLD THE DAY. I DON'T KNOW HOW MUCH WE'LL HAVE TO

DISCUSS, BUT I GUESS IT WILL BE A LOT, AND WE'LL HEAR FROM

EVERYBODY.

SO WHAT I'M GOING TO PROPOSE, AND I'LL HEAR FROM

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EVERYBODY BEFORE WE MAKE THIS THE ORDER. WHAT I'M GOING TO

PROPOSE IS THAT THE PLAINTIFFS HAVE SEVEN DAYS TO EVALUATE HOW

THEY'D LIKE TO PROCEED AND THAT THEY'LL NOTIFY THE DEFENDANTS

WITHIN SEVEN DAYS OF TODAY WHICH SCHEDULE WE'LL BE OPERATING

UNDER. AND THEN YOU'LL JOINTLY SUBMIT AN ORDER TO THE COURT

ESSENTIALLY ENCAPSULATING WHAT I'VE DECIDED TODAY AND THE

SCHEDULE THAT WILL GOVERN.

MR. MAGLEBY, MR. LOTT, MS. GODDARD, ANY OBJECTIONS TO

PROCEEDING IN THAT WAY? ARE THERE ISSUES I HAVEN'T THOUGHT

ABOUT? SAVE, MR. MAGLEBY, FOR YOUR OBJECTIONS, OF COURSE,

YOU'D LIKE TO PROCEED WITH DISCOVERY TODAY. WE'LL RESERVE

THOSE OBJECTIONS. BUT IS THERE ANY REASON WE CAN'T PROCEED

THIS WAY?

MR. MAGLEBY: WELL, YOUR HONOR, IF YOU TELL US TO DO

IT, THERE'S NO REASON THAT WE CAN'T DO IT AND WE WILL DO IT.

WHAT I'LL ASK IS THAT WE ADD AN ADDITIONAL COMPONENT TO IT,

AND THAT IS THAT WE SET EXPERT DEADLINES FOR MAYBE 45 DAYS

AFTER YOUR HONOR RULES.

THE COURT: YOU KNOW, I ACTUALLY HAVE ONE BETTER IN

MIND FOR YOU.

MR. MAGLEBY: OH, GREAT.

THE COURT: I'M SORRY I DIDN'T GET THIS FAR. I HAVE

IN MIND THAT WE'LL ALSO SCHEDULE TODAY A STATUS CONFERENCE THE

FIRST WEEK THAT WE'RE ALL BACK AFTER THE FIRST OF THE YEAR.

THE COURT'S CLOSED ON THE 1ST, AND I THINK LAST YEAR -- I

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CAN'T RECALL IF WE WERE OPEN ON THE 2ND, BUT WHAT I HAD IN

MIND IS HAVING EVERYBODY IN THE FIRST MONDAY IN JANUARY -- OR

PROBABLY TUESDAY INSTEAD, TUESDAY JANUARY 7TH, FOR A STATUS

AND SCHEDULING CONFERENCE. MY EXPECTATION IS THAT YOU WOULD

ALL HAVE A RULING FROM ME IN ADVANCE OF THAT DATE.

AND AT THAT TIME, IF THERE -- IF THE CASE IS NOT -- IF

THE MOTIONS WEREN'T DISPOSITIVE OF THE CASE, THEN WE'LL BE

CHARTING A COURSE, SETTING A TRIAL DATE, IDENTIFYING THE

DISCOVERY THAT NEEDS TO BE COMPLETED, DEADLINES FOR THE

DISCOVERY, AND THE LIKE.

MR. MAGLEBY: THANK YOU, YOUR HONOR. THAT ADDRESSES

MY ONE CONCERN. WHAT I WOULD ALSO LIKE TO KNOW, AND I DON'T

KNOW IF THERE'S -- HOW WE DO THIS, BUT THERE'S REALLY TWO

ISSUES THAT ARE GOING TO RELATE TO WHETHER WE FILE A

CROSS-MOTION FOR SUMMARY JUDGMENT, AND ONE IS WHAT ARE THE

FACTS THE STATE IS WILLING TO STIPULATE TO. SO, FOR EXAMPLE,

SOME OF THE THINGS MR. LOTT MENTIONED, THEY COULD EASILY

CONTEST THOSE IF THEY CHANGE THEIR MIND AND DECIDED TO CONTEST

WHETHER OR NOT OUR CLIENTS ARE IN A COMMITTED RELATIONSHIP.

THE COURT: WELL, YOU KNOW THE ANSWER TO THAT. IF

YOU INCLUDE THOSE FACTS IN YOUR MOTION FOR SUMMARY JUDGMENT --

MR. MAGLEBY: IT'S SOMETHING THAT I WOULD LIKE TO

KNOW BEFORE I SPEND THE TIME AND MONEY. AND I WOULD LIKE TO

KNOW -- IN ADDITION, THIS IS MORE IMPORTANT FOR ME IN MAKING

THAT DECISION IS WHAT ARE THE -- WHAT INTEREST IS THE STATE

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GOING TO ADVANCE AS PART OF ITS IMPORTANT GOVERNMENT PURPOSE

OR LEGITIMATE STATE INTEREST. AND I DON'T NEED A DISCOVERY

ANSWER. I JUST NEED A LIST OF WHAT THOSE ARE BECAUSE THEN I

CAN GO GET MY EXPERTS AND THEN WE CAN DECIDE, HEY, WE THINK

WE'VE GOT A SHOT AT SUMMARY JUDGMENT ON THESE. SO THAT WOULD

BE THE COMPONENT THAT I WOULD ASK THE COURT TO HAVE THEM GIVE

US THAT LIST 30 OR 45 DAYS FROM NOW.

THE COURT: I UNDERSTAND YOUR POSITION. IN PART

BECAUSE OF THE PROCEDURAL POSTURE OF THIS CASE, I'VE DONE JUST

ENOUGH RESEARCH INTO ALL OF THIS TO BE DANGEROUS, AND PROBABLY

LEGALLY INCORRECT. BUT I THINK -- I REALLY THINK THE ANSWER

TO THAT QUESTION TURNS ON THE LEVEL OF SCRUTINY THAT WE APPLY

IN THIS CASE. IF IT'S A RATIONAL BASIS LEVEL OF SCRUTINY THAT

APPLIES, FOR EXAMPLE, I DON'T THINK THE STATE HAS AN

AFFIRMATIVE BURDEN TO COME FORWARD AND IDENTIFY THE -- I'M NOT

SURE ABOUT THIS, BUT I DON'T THINK THEY HAVE THE BURDEN TO

COME FORWARD AND SAY THIS AMENDMENT ADDRESSES THESE

RATIONAL -- OR HERE IS A LIST OF RATIONAL BASES FOR THAT

AMENDMENT.

I THINK THE CASE LAW SAYS THAT I'M REQUIRED TO DETERMINE

THAT THERE ARE NONE, I THINK. I'M NOT SURE OF THAT. I

HAVEN'T RESEARCHED THAT QUESTION EXHAUSTIVELY, BUT WE'LL KNOW

THE ANSWER TO THAT QUESTION AFTER WE GET YOUR MOTIONS AND I

REVOLVE THEM.

I THINK I GET WHERE YOU'RE GOING, BUT I THINK WE'RE

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PUTTING THE CART BEFORE THE HORSE. HOW ARE WE NOT? MAYBE WE

HAD THIS DISCUSSION IN PART ALREADY. MAYBE I'M JUST NOT

CATCHING IT.

MR. MAGLEBY: WELL, YOUR HONOR, IF THEY'RE NOT

WILLING TO ADVANCE ANY, I MEAN IF THEY'RE GOING TO SAY IT IS

A RATIONAL BASIS PERIOD, WE'RE NOT GOING TO COME FORWARD,

THAT'S NOT OUR BURDEN, THAT'S HELPFUL FOR ME TO KNOW IN

DECIDING WHETHER TO FILE A CROSS-MOTION FOR SUMMARY JUDGMENT.

I MEAN I WANT TO KNOW WHAT THEY'RE GOING TO STIPULATE TO IN

TERMS OF FACTS AND WHAT THEY'RE NOT GOING TO CONTEST.

THE COURT: I'M NOT INCLINED TO ORDER THEM TO GIVE

YOU THAT INFORMATION BEFORE YOU MAKE YOUR DECISION.

BUT, MR. LOTT, WHAT'S YOUR ANSWER TO THAT? CAN YOU

ANSWER THAT QUESTION? DO YOU KNOW THE ANSWER TO THAT

QUESTION?

MR. LOTT: I DON'T KNOW THE ANSWER TO THAT QUESTION.

THE COURT: HOW CAN YOU KNOW THE ANSWER TO THAT

QUESTION?

MR. LOTT: I CAN'T.

THE COURT: WELL, YOU WILL -- AT SOME POINT YOU'LL

KNOW THE ANSWER TO THAT QUESTION.

MR. LOTT: WHEN WE FILE OUR MOTION -- AND I DON'T

WANT TO COMMIT TO A POSITION, BUT I DON'T SEE HOW WE WOULD

STIPULATE TO WHAT I WOULD CONSIDER TO BE A LEGISLATIVE FACT.

I THINK THE VIEWS ARE QUITE DIFFERENT, AND I DON'T KNOW WHAT

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WE WOULD STIPULATE TO AS FAR AS THAT'S CONCERNED.

I FORESEE THAT WE MAY STIPULATE TO SOME OF THE

ADJUTICATIVE FACTS REGARDING THE PARTIES THEMSELVES, BUT I

DON'T KNOW WHAT ELSE TO SAY.

THE COURT: THANK YOU, MR. LOTT. I MEAN I'LL TELL

YOU, MR. MAGLEBY, THIS IS ONE OF THE REASONS THAT I THINK IT

WOULD BE HELPFUL FOR THE COURT IF THERE WERE TWO MOTIONS IN

FRONT OF ME. IF THERE WERE CROSS-MOTIONS, I THINK WE WOULD

DEVELOP AND RESOLVE THESE VERY QUESTIONS. BUT I'M NOT TELLING

YOU TO FILE A MOTION FOR SUMMARY JUDGMENT, AND I'M NOT

ORDERING YOU TO DO IT, AND IT MAY BE THAT THERE ARE VERY GOOD

REASONS WHY YOU SHOULDN'T OR DON'T WANT TO.

I THINK IT WOULD BE HELPFUL. I ESPECIALLY THINK IT WOULD

BE HELPFUL IN PINNING DOWN THE RESPECTIVE POSITIONS OF THE

PARTIES BECAUSE THEY WILL IN FACT BE RESPONDING TO YOUR

STATEMENT OF MATERIAL FACTS IF YOU INCLUDE ONE, IF YOU FILE A

MOTION. AND I THINK THAT'S SOMETHING THAT WOULD BE BINDING ON

BOTH PARTIES, THOSE RESPONSES, THROUGHOUT THE LITIGATION.

LET ME QUALIFY THAT. I'M NOT CERTAIN OF THAT UNDER THE

CASE LAW, BUT I BELIEVE THAT TO BE TRUE.

GO AHEAD, MR. MAGLEBY, TAKE A MOMENT.

MR. MAGLEBY: IF I COULD JUST TALK TO MS. TOMSIC FOR

ONE SECOND?

THE COURT: TAKE WHATEVER TIME YOU NEED. IN FACT,

IF YOU'D LIKED ANOTHER RECESS TO CONSULT, WE CAN DO THAT.

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WHATEVER YOU'D LIKE.

MR. MAGLEBY: I THINK IT WILL BE SHORT, AND IF IT

WON'T, THEN I'LL TELL YOU.

(BRIEF PAUSE)

MR. MAGLEBY: YOUR HONOR, THE CONSIDERATION WE'RE

HAVING IS IF WE CHOOSE TO FILE A CROSS-MOTION FOR SUMMARY

JUDGMENT, THEN ARE WE GOING TO BE DONE WITH SUMMARY JUDGMENT

MOTIONS THEN? I MEAN THE STATE HAS SAID, I THINK, THAT

THEY'RE ALL IN ON THIS FIRST MOTION. AND IF I KNOW THAT'S THE

CASE, I'M NOT GOING TO BE GETTING A SECOND OR A THIRD MOTION

OR REQUESTS FOR A CONTINUANCE OF THE TRIAL, THAT'S ALSO AN

IMPORTANT FACT. AND SO I WOULD EITHER ASK THE STATE TO TELL

US THAT OR COMMIT TO THAT OR FOR THE COURT TO ORDER IT.

THE COURT: THESE ARE THE HYPOTHETICALS THAT I SPENT

A GREAT DEAL OF TIME THINKING ABOUT WHEN I WAS TRYING TO THINK

ABOUT THE SCHEDULE THAT MIGHT APPLY IN THE CASE. MY

PERCEPTION IS THAT CROSS-MOTIONS FOR SUMMARY JUDGMENT LIKELY

COULD BE DISPOSITIVE OF THE CASE TOO, BUT IF THEY'RE NOT, IT

SEEMS TO ME THEN WE'RE JUST SETTING A TRIAL ON THE ISSUES

WE'VE IDENTIFIED THAT ARE IN DISPUTE.

I'M NOT GOING TO ORDER A PARTY TO COMMIT TO THAT BEFORE

THEY'VE SEEN -- BEFORE THEY'VE SUBMITTED THEIR OWN MOTION OR

SEEN YOURS. AND I DON'T KNOW. THIS IS PRECISELY WHY I THINK

MOTIONS WILL HELP ALL OF US UNDERSTAND WHAT IT IS WE NEED TO

ADDRESS AND RESOLVE IN THIS CASE.

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BUT, MR. LOTT.

MR. LOTT: ALL I WAS GOING TO SAY IS I CAN'T COMMIT

THAT WE'RE NOT GOING TO FILE ANY ADDITIONAL MOTIONS BECAUSE

DEPENDING ON WHAT THE COURT RULES, IT MAY IMPACT WHAT

DIRECTION WE GO FROM THAT POINT. IT'S GOING TO DEPEND ON THE

COURT'S RULING.

THE COURT: WHAT I'M NOT GOING TO ENTERTAIN AND WHAT

NONE OF YOU WILL WANT TO ENTERTAIN IS RELITIGATING ISSUES THAT

ARE RESOLVED. SO INSOFAR AS YOUR MOTIONS PRESENT ISSUES, THEY

WILL BE RESOLVED, AND THEY WILL BE FINALLY RESOLVED PENDING AN

APPEAL THAT EITHER OR BOTH OF YOU MAY WISH TO TAKE. SO WE

WON'T BE RELITIGATING ISSUES THAT ARE RAISED AND ANSWERED.


THE COURT: DOES THAT HELP AT ALL, MR. MAGLEBY?

MR. MAGLEBY: IT DOES HELP.

THE COURT: OKAY, ALL RIGHT. WHAT AM I FORGETTING?

WHAT ELSE CAN WE ADDRESS? WHAT ELSE CAN I DO TO HELP ALL OF

YOU? IS THERE ANYTHING MORE WE SHOULD TAKE UP?

MS. GODDARD, YOU'VE BEEN QUIET. AM I BOXING YOU OUT OF

THIS DISCUSSION?

MS. GODDARD: NOTHING FROM US, YOUR HONOR.

THE COURT: ALL RIGHT. MR. LOTT, ANYTHING FURTHER

YOU THINK WE SHOULD ADDRESS?

MR. LOTT: I DON'T BELIEVE SO, YOUR HONOR.

THE COURT: WHILE --

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MS. TOMSIC: YOUR HONOR, COULD WE GET A TIME ON

JANUARY 7TH FOR THE STATUS CONFERENCE?

THE COURT: I WROTE IT DOWN RIGHT HERE. IT WILL BE

10:00 A.M.

MS. TOMSIC: ALL RIGHT.

THE COURT: AND I'LL JUST ASK YOU TO INCLUDE THAT IN

THE ORDER THAT YOU SUBMIT TO THE COURT, PLEASE.

AND, MR. MAGLEBY, I'LL ASK YOU TO DRAFT THAT ORDER WITH

INPUT AND CONSULTATION, OF COURSE, WITH MR. LOTT AFTER YOU'VE

MADE YOUR ELECTION, WHICH SHOULD BE BY THE END OF DAY SEVEN

DAYS FROM TODAY. IS THAT ENOUGH TIME FOR YOU TO DECIDE?

MR. MAGLEBY: THAT IS, YOUR HONOR. I ALWAYS HAVE TO

ASK THIS BECAUSE I'M ALWAYS CONFUSED BY THIS. IS THAT SEVEN

BUSINESS DAYS OR IS THAT SEVEN CALENDAR DAYS?

THE COURT: LET'S HAVE YOU FILE THAT, FILE THE ORDER

WITH THE COURT, ON -- MAKE YOUR -- WELL, MAKE YOUR ELECTION

BY -- MAKE YOUR ELECTION BY 3:00 P.M. NEXT TUESDAY, SEPTEMBER

3RD, AND THEN YOU CAN ALL JUST SUBMIT THE ORDER WHENEVER IS

CONVENIENT AFTER THAT. YOUR SCHEDULES WILL BE IMPACTED BEFORE

OURS.


THE COURT: IS THERE ANYTHING ELSE YOU THINK WE

SHOULD TAKE UP TODAY, MR. MAGLEBY?

MR. MAGLEBY: NOTHING FROM US, YOUR HONOR.

THE COURT: ALL RIGHT. WELL, THANK YOU ALL FOR YOUR

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PATIENCE. WE'RE HAPPY TO HAVE YOU HERE, AND WE LOOK FORWARD

TO TRYING TO GET THROUGH THIS TOGETHER, SO WE'LL BE IN RECESS.


(HEARING CONCLUDED AT 3:15 P.M.)

* * *

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CERTIFICATE OF REPORTER

I, RAYMOND P. FENLON, OFFICIAL COURT REPORTER FOR THE

UNITED STATES DISTRICT COURT, DISTRICT OF UTAH, DO HEREBY

CERTIFY THAT I REPORTED IN MY OFFICIAL CAPACITY, THE

PROCEEDINGS HAD UPON THE HEARING IN THE CASE OF

KITCHEN, ET AL. VS. HERBERT, ET AL., CASE NO. 2:13-CV-217,

IN SAID COURT, ON THE 27TH DAY OF AUGUST, 2013.

I FURTHER CERTIFY THAT THE FOREGOING PAGES CONSTITUTE

THE OFFICIAL TRANSCRIPT OF SAID PROCEEDINGS AS TAKEN FROM MY

MACHINE SHORTHAND NOTES.

IN WITNESS WHEREOF, I HAVE HERETO SUBSCRIBED MY NAME

THIS 6TH DAY OF SEPTEMBER, 2013.

/S/ RAYMOND P. FENLON

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Documents

2:13-cv-00217 #25